How Do I Obtain a Copyright? INTRODUCTION TO INTELLECTUAL PROPERTY Intellectual property is a dynamic area of law that continues to be at the forefront of innovation, and continues to develop. Intellectual property is the legal right to ideas, inventions, and creations in the artistic, literary, industrial, and scientific fields. It also covers symbols, names, images, designs, and models used in business. Intellectual property is distinguishable from physical property in that physical property is tangible whereas intellectual property does not have a physical presence and therefore cannot be touched or grasped. The three most common types of intellectual property are: (1) copyrights; (2) trademarks; and (3) patents. This blog focuses on the law surrounding copyrights. COPYRIGHT What is copyright? In simple terms, a copyright gives one the right to copy. A person that holds a copyright has the sole right to produce or reproduce a work or a substantial part of the work in any form. Copyright includes the right to perform the work or any substantial part of it. If a person’s work is unpublished, copyright entitles that person to publish the work or any substantial part of it. What does copyright protect? Copyright protects a person’s original artistic, dramatic, musical, and literary creations, and therefore prevents the creation from being legally copied, performed, or broadcast without the creator’s permission. It also protects software that is original. Importantly, copyright protects the expression of an idea, rather than protecting the idea itself. It is therefore unsurprising that copyright affects artists, athletes, and entrepreneurs, all of whom might express ideas in vastly different ways, but are nevertheless equally deserving of protection. Copyright commonly protects the following kinds of creative works: literary works, such as books, pamphlets, and computer programs; dramatic works, such as films, plays, screenplays, and scripts; musical works, such as musical compositions; and artistic works, such as paintings, drawings, and photographs. Copyright also protects sound recordings, radio waves, and performers’ performances. Why is it important to register one’s copyright? Copyright exists automatically once a person creates an original work or other subject-matter, provided certain conditions in the Copyright Act are met. A person’s creation thus receives some copyright protection even without registering it at the Canadian Intellectual Property Office. However, when one registers its copyright and subsequently receives a certificate of registration, the certificate provides proof that the copyright exists and that the person registered is the owner of the copyright. Proof of copyright can help to prevent lengthy court disputes in the future. How long does copyright protection last? Copyright lasts for the life of the author, the remainder of the calendar year in which the author dies, and for 50 years following the end of that calendar year. This includes sound and video recordings, books, songs, poetry, and more. At Devry Smith Frank LLP we have experienced lawyers in all areas of law. If you are looking for a lawyer to obtain a copyright or have general questions pertaining to intellectual property law, please contact intellectual property lawyer, Frank Shostack at 416-446-5818 or frank.shostack@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Intellectual PropertyJanuary 8, 2020September 30, 2020
How Do I Obtain Intellectual Property Rights? INTRODUCTION TO INTELLECTUAL PROPERTY Intellectual property is a dynamic area of law that continues to be at the forefront of innovation, and continues to develop. Intellectual property is the legal right to ideas, inventions, and creations in the artistic, literary, industrial, and scientific fields. It also covers symbols, names, images, designs, and models used in business. Intellectual property is distinguishable from physical property in that physical property is tangible whereas intellectual property does not have a physical presence and therefore cannot be touched or grasped. The three most common types of intellectual property are: (1) copyrights; (2) trademarks; and (3) patents. This blog focuses on the law surrounding trademarks. TRADEMARKS What is a trademark? A trademark can be one or many words, sounds, or designs used to distinguish the goods or services of one person or organization from those of others. As time passes, trademarks come to stand for not only the producer’s actual goods or services, but also the producer’s reputation. There are three types of trademarks: 1. An ordinary mark is made up of words, sounds, designs or a combination of these used to distinguish the goods or services of one person or organization from those of others. For example, suppose you start a technology company centred on fitness, and you call it SixPack Technologies, you could register these words as a trademark if you meet all the legal requirements for the services that you offer. 2. A certification mark can be licensed to many people or companies for the purpose of showing that certain goods or services meet a defined standard. For example, the Kellogg’s design, owned by the Kellogg Company, and licensed to Kellogg Canada Inc., is used on cereal and other goods. 3. A distinguishing guise is about the shape of goods or their containers, or a way of wrapping or packaging goods that shows they have been made by a specific individual or firm. For example, if you manufacture S-shaped granola bars, you could register the S-shape as a distinguishing guise. To register, or not to register? A registered trademark is a trademark that has been reviewed, accepted, and entered in the Register of Trademarks. The application process may or may not be difficult, depending on the trademark in question. Registration is direct evidence that you own the trademark. For those who have yet to register their trademark, all is not lost. In Canada, owners of unregistered trademarks still enjoy certain rights and protections, albeit to a lesser degree. The owner of an unregistered trademark simply has to publically use the trademark for a certain length of time. These rights, however, are limited to the geographic area where the trademark has been used. Also, a legal dispute involving ownership of an unregistered trademark would likely be long, complicated, and expensive. On the other hand, there are five reasons why you should register your trademark: 1. It proves that the trademark is yours. 2. It gives you exclusive rights to use the trademark across Canada for 15 years (which you can indefinitely). 3. It stops others from using a confusingly similar trademark. 4. It allows you to flag infringements by others. 5. It helps you license your trademark, which you can use to make money and increase your brand’s popularity. What trademarks are not registrable? Generally, a person cannot register the following marks: • names and surnames (i.e. John Doe) • clearly descriptive marks (i.e. “sweet” for chocolate) • deceptive marks (i.e. “sugar sweet” for candy sweetened with artificial sweetener) • words that represent a geographical location commonly known to be the place of origin of such goods or services (i.e. “Italy” for pizza) • words in other languages (i.e. “cioccolato”, which is Italian for “chocolate”) • words or designs that could be confused with a registered trademark or pending trademark • words or designs that look very similar to a prohibited mark (i.e. the Canadian flag) REGISTERED TRADEMARK + RECOGNIZABLE TRADEMARK = ENDLESS POSSIBILITIES A classic example of an incredibly powerful trademark is “Nike” and its very impressive “swoosh” trademark, since it doesn’t contain letters and is still recognized all over the world. Nike has registered the “swoosh” trademark and therefore has a strong legal right to prevent others from using a similar trademark in the same industries. Nike’s concern is that a similar trademark could confuse consumers into thinking that the infringing company is in fact Nike, which could both enrich the infringing company and compromise Nike’s strong reputation. When considering that it has taken Nike nearly 60 years to build a brand that some would consider synonymous with sports, it is no surprise that Nike will spend millions of dollars in legal battles to protect its reputation and brand image. At Devry Smith Frank LLP we have experienced lawyers in all areas of law. If you are looking for a lawyer or have general questions pertaining to intellectual property law, please contact intellectual property lawyer, Frank Shostack at 416-446-5818 or frank.shostack@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Intellectual PropertyDecember 30, 2019September 30, 2020
