Trademark vs Copyright vs Patent in India: Which One Protects What?
Short answer: In India, a trademark protects a brand identifier, such as a name, logo or slogan used for goods or services. Copyright protects original creative works such as writing, art, music, film and software code. A patent protects a new invention. A design registration protects the visual shape or pattern of a product. A business often needs more than one: a logo, for example, can be both a trademark and a copyright artistic work.
The four rights side by side
| Trademark | Copyright | Patent | Design | |
|---|---|---|---|---|
| Protects | A brand: name, logo, slogan, shape, packaging, colour combination or sound that identifies your goods or services | Original literary, dramatic, musical and artistic works, films and sound recordings (including software code) | An invention: a new product or process with an inventive step and industrial use | The shape, configuration, pattern or ornament applied to an article |
| Law | Trade Marks Act, 1999 | Copyright Act, 1957 | Patents Act, 1970 | Designs Act, 2000 |
| How you get it | Registration (rights from use also exist, through passing off) | Automatically on creation; registration is optional | Only by application and grant | Only by registration |
| How long | 10 years, renewable every 10 years without limit | For most works, the author's lifetime plus 60 years | 20 years from filing, subject to annual renewal fees | 10 years, extendable once by 5 years |
| Office | Trade Marks Registry | Copyright Office | Patent Office | Patent Office (Designs Wing) |
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Trademark: protecting the brand
A trademark is any mark that can be represented graphically and distinguishes your goods or services from someone else's. Brand names, logos, taglines, product shapes, packaging and colour combinations all qualify. Registration is class-based, so you protect the mark for the goods or services you actually deal in; the class finder shows where your products fall.
Registration lasts ten years and can be renewed for further ten-year periods for as long as the business wants (Section 25). The application is made on Form TM-A, at Rs 4,500 per class online for an individual, startup or small enterprise and Rs 9,000 per class for others. See trademark registration.
Copyright: protecting creative work
Copyright subsists in original literary, dramatic, musical and artistic works, cinematograph films and sound recordings (Section 13 of the Copyright Act, 1957). Computer programs are protected as literary works. Copyright arises as soon as the work is created; registration with the Copyright Office is optional, but an entry in the Register of Copyrights is prima facie evidence of the particulars recorded in it (Section 48).
Copyright protects the expression, not the idea, and it does not protect a brand name or a short slogan as such. For those, a trademark is the right tool. For most published literary, dramatic, musical and artistic works, copyright lasts for the author's lifetime plus 60 years (Section 22).
Patent: protecting an invention
A patent is granted for an invention: a new product or process that involves an inventive step and is capable of industrial application (Section 2(1)(j) of the Patents Act, 1970). Some things are excluded by Section 3, including business methods and computer programs per se (Section 3(k)).
A patent lasts 20 years from the date of filing (Section 53), and annual renewal fees must be paid to keep it in force. It cannot be renewed after 20 years. Keep an invention confidential until the application is filed, because public disclosure can destroy its novelty. A product name can never be patented; the name is protected by a trademark.
Design registration: protecting how a product looks
The Designs Act, 2000 protects the features of shape, configuration, pattern, ornament or composition of lines or colours applied to an article, judged by the eye. It suits products whose appearance is the selling point, such as furniture, bottles, jewellery and footwear. Registration lasts ten years and can be extended once by five years (Section 11). A distinctive product shape or packaging can sometimes also be registered as a trademark, which can be renewed indefinitely.
Logos: trademark, copyright or both?
A logo is both a brand identifier and an artistic work, so it can be protected both ways. A trademark registration stops others from using a confusingly similar logo for similar goods or services. Copyright stops anyone from copying the artwork itself, whatever they use it for.
If you apply to register the copyright in an artistic work that is used, or capable of being used, on goods or services, the Copyright Act requires a certificate from the Registrar of Trade Marks that no identical or deceptively similar trademark has been registered or applied for by anyone else (proviso to Section 45(1)). That certificate is requested on Form TM-C under Rule 22 of the Trade Marks Rules, 2017, with a government fee of Rs 9,000 online. It is ordinarily issued within thirty working days; an expedited certificate, ordinarily within seven working days, costs Rs 30,000 and can only be requested online. See the trademark forms and logo trademark registration.
Which one does your business need?
- A brand name, logo or tagline: a trademark, in every class you sell in.
- A logo designed for you: a trademark, plus a written assignment of copyright from the designer so that you own the artwork.
- Software, website content, catalogues, photographs or music: copyright, which exists automatically; register it if you expect a dispute.
- A new machine, formulation or technical process: a patent, filed before you disclose it.
- A distinctive product shape or pattern: a design registration, and possibly a shape trademark.