Harness the Powers of the Trademark and the Copyright


Double golden arches on a red background. A swoosh. A bitten apple.

The brand names weren’t mentioned, but you knew which brand was being indicated. That is the power of a trademark.

A trademark is what is called Intellectual Property. According to the World Intellectual Property Organization (WIPO), “Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce. IP is protected in law by, for example, patents, copyright, and trademarks, which enable people to earn recognition or financial benefit from what they invent or create.”

But what are trademarks and copyrights?

A trademark is a symbol or a sign that lets a consumer distinguish the product of a brand from the various others in the market. Usually, trademarks are drawings or symbols, like the swoosh of Nike, or the bitten apple of Apple.

A word, letter, or a combination of those could also serve as a trademark – like the M of McDonalds, or LV of Louis Vuitton. The WIPO says that features and non-visible signs of the goods can also be trademarks like a particular fragrance, or a color (think Tiffany blue, Cadbury purple). Trademarks make for very effective market communication tools and let your brand be imprinted in the consumers’ minds for a long time.


Since a trademark is essentially a defining feature of your brand, it stops other brands from leveraging your brand’s reputation to sell their products. You and only you can use it on your products. You can pursue a legal path if others use it for their products. A trademark, however, does not stop another brand from selling a similar product with a different logo. It cannot protect an idea or an invention.

For example, Louis Vuitton can sue another company only if it uses LV on its handbags; not if it uses LL, VV, VL, or anything dissimilar.

A copyright is an author’s right. It protects a creator’s rights over their creation – literary or artistic. The creation can be books, movies, paintings, music, or sculptures, and must have been created for its own merit. Copyright is applicable as soon as something is created by its artist. But like a trademark, it does not protect an idea.

It protects expressions. It gives the creator economic rights i.e. the author gets financial rewards from the use of their work by others. For example- if a song is used as an ad jingle, the artist gets a financial reward from the company that has used the song in its advertisement.

The author has the right to prohibit or authorize the use of his work. It could be as a reproduction in print, in recording, in broadcasting, or even as translation.

How do Trademarks and Copyrights help a brand?

This is where branding comes in!

Branding is a component of marketing that helps in creating a strong identity and a distinguishing impression in the consumer’s eyes and mind. It involves elements like logos, themes, design of products, design of packaging, etc. And what are logos and themes if not for trademarks and copyrights?

The triangular packaging of Toblerone is trademarked, and so is the 4-bar shape of KitKat. Something as simple as the red soles of Christian Louboutin footwear is also a very effective way of creating a distinct impression.

Proper and effective use of branding i.e., logos and such, helps the brand stand out even in a cluttered marketplace. It calls out to the consumer, helps a brand create a strong narrative around it, and is also an indicator of consistency across products and platforms.

If you are in the business of creating something novel, then trademarks and copyrights can take you a long way. It is essential to understand the difference between the two at the application level. Copyright is for the content itself, but a trademark is an identifying mark/logo/sign/symbol.

For example, if you are an ice-cream company, the video showcasing the production process, and the relevant blog can be copyrighted, but the logo has to be trademarked. The music you create as a part of the promotion campaign can also be copyrighted. All of this together helps in branding.

In a nutshell, the difference between a copyright and a trademark is that-

  • Copyright protects literary, dramatic, musical, and artistic works which include everything ranging from software, research, articles, songs, movies, and AV materials.

Since copyright is applicable the moment some content is created, no special application needs to be made for it. It lasts for the lifetime of the artist/author, and an extended 60 years after their death in the case of India, and 70 years after death in the case of the US.

  • Trademark protects names, logos, and slogans that are associated with a particular brand.

Whereas, for a trademark, an application must be filed online or in person depending on which country you seek protection in. This is because trademarks are granted on a territorial basis. If a trademark is registered in India, it does not provide protection in the US, and vice-versa.

Implications of having and not having trademarks and copyrights

One way to get international registration is to register through ‘Madrid Protocol’. It is an international treaty that allows companies to file a single application which can then be applied to more than 90 member countries. The first step is to register with the local authority.

A registered trademark also needs to be renewed every 10 years along with the payment of fees to make sure you can still use the advantages that a trademark can bring.

  • Why register?

Registering the trademark with the relevant government authority can bring with it a slew of advantages. Apart from giving exclusive rights to use a logo to stand out in the market, a trademark can also be hypothecated as security. This means that it can be pledged as security to secure loans just the way vehicles and other immovable property are pledged.

In case of infringement, a registered trademark gives rights to initiate legal proceedings. A Direct Infringement is when the trademark is used by an unauthorized person, or such a person uses a logo that is very identical and similar to a registered trademark. In India, it is considered a cognizable offense and may attract civil and criminal charges. The court may award remedies like temporary/permanent injunction, destruction of goods containing the said trademark, cost of legal proceedings, financial damages, etc. Criminal charges include imprisonment for a period not less than 6 months that may extend to three years and a fine that is not less than Rs. 50,000 that may extend to Rs. 2 lakh.

A registered trademark is, however, the weakest form of protection one can receive. For example – McDonalds can only stop others from using its logo and slogan, it cannot stop others from making burgers and fries. Only the marketing aspect is protected. This is why a trademark should ideally go along with some other kind of IPR like a patent or copyright to get maximum protection.

  • What are the disadvantages of not registering?

The use of an unregistered trademark’s illegitimate use has very limited statutory protection. The Trademark Act, 1999 merely states that a prior user of the trademark will get priority over subsequent users despite being registered.

If you want to advertise your brand at some point, since you do not have a property right, your brand will be vulnerable.

It is also a loss of business opportunity as it cannot serve as a guarantee or be a part of a franchise.

What has been happening in the sphere of trademark and copyright infringements?

As long as there are businesses, brands and competition, there will be cases of infringement.

  • Hero Electric and Hero Motor Corp had been in a legal battle for the ownership rights of the brand ‘Hero’ for eco-friendly products. Hero Electric filed an interim injunction against Hero Motor Corp for using the brand ‘Hero’ for its electric vehicles.

Here, the battle is for the use of the trademark brand name ‘Hero’ for its vehicles. Since Hero electric could not provide enough evidence to show that the usage of such a brand name would affect them negatively in any way, an arbitration tribunal appointed by Delhi HC has allowed Hero Motor Corp to use ‘Hero’ for its electric vehicles.

  • The promoter of CEAT tires, RPG Enterprises, filed a lawsuit against RPG opticals and RPG Pharmacy alleging that they are infringing its registered trademark and copyright.

Unlike the Hero case – due to the use of the trademark ‘RPG’ – RPG Enterprises were shown to suffer and continue suffering an irreparable injury because the group has long-standing goodwill and reputation. The Bombay HC has hence restrained the owners of RPG opticals and RPG pharmacy from using names or any other mark, device, logo, or domain name which are identical or deceptively similar to ‘RPG’.

  • Sony corporation filed a trademark infringement suit against a sole proprietor running a tours and travels business under Sony Tours and Travels. The court concluded that the defendant did not take any unfair advantage or cause any disadvantage/loss to Sony corporation as the corporation’s business is limited to electronics and media. The court also stated that the use of the name Sony did not cause any confusion among its consumers.

The above case shows that despite registration, if the business domain does not overlap and does not show any undue harm being done to the plaintiff, then the infringement case will not hold any water.

Intellectual Property Rights are an important asset in any business’ balance sheet. It is essential to take the help of professionals, like a CFO consultancy service, to help with the registration process and help with the outcome of such registration.