For most companies running business in China, they may firstly consider registering their brand as a trademark to avoid copycats and fake products but may not pay much attention to copyright registration for its logo. In fact, both a trademark and copyright are available for the right owners to protect their brand though they’re different system. Knowing the differences between them helps you to better build up the IP protection systems and avoid most risks of infringement.

Trademarks V.S. Copyrights

As we all know, any signs, including words, graphs, letters, and numbers, etc., that can distinguish the goods or services may be applied for trademark. Since the figurative trademark and artistic trademark can be protected as an artistic work and carries the copyright, here may come to a question of which way should be chosen to protect your brand?

Technically, a trademark is protected as a sign which is used to distinguish the source of relevant goods or services. So, trademark registration is limited to a certain range of goods or services, which are classified into different classes. Once a sign is registered as a trademark, it will be only protected under the designated classifications, and the trademark owner will have the exclusive right to use, license, and prevent others from using the trademark, etc. Though a significant sign can be used as a trademark without registration, the trademark protection mainly depends on its registration.

As for copyright, it aims to protect the authorship and relevant property rights of literary, artistic, and scientific works, including written works, oral works, photographic works, and musical, dramatic works, etc. Works of Chinese authors shall enjoy copyright once it is finished, and any work of a foreigner or stateless person published for the first time and within the territory of China shall also enjoy copyright in accordance with the Copyright Law of China. Being different from exclusive right of registered trademark, copyrights generate along with the completion of works.

Copyright registration in China

The registration of copyright generally includes two kinds, including the registration for an original state of copyright and registration for change of ownership of the copyright. The first kind of registration refers to a procedure of the original acquisition of copyright, while the second one applies to the copyright acquisition through an assignment.

As copyright registration does not require a substantial examination, the process of copyright registration is simpler than the trademark registration procedure. The applicant of copyright registration shall submit prescribed documents before CPCC (Copyright Protection Center of China), and CPCC will conduct a formality check on the materials and issue a registration certificate if the application meets the requirements.

In order to apply for copyright registration in China, the applicant needs to prepare a sample of the applied work, a description of the work, the identification document of the applicant, an executed power of attorney, and a duly filled application form.

Why should you obtain a copyright registration for your device mark?

With respect to a device trademark, if it contains the stylized graphic or pattern, so it very likely carries copyright too. Given the procedure and examination for trademark registration is more complicated and takes more time, the applicant may file both the trademark and copyright registration at the same time. Once the trademark application is approved, the trademark can be protected under a more comprehensive system. Even though the trademark application is provisional refused, the logo can obtain copyright protection first during the appeal or other remedy proceedings.

Though the copyright has been generated since the creation of a work has been finished, the certificate has great importance when enforcing the copyright. But the certificate is proof of ownership rather than proof of the existence of the copyright. It’s also important to retain relevant evidence to prove the claimed creation and publication date in your certificate.

In an opposition or invalidation case, if the trademark is same with yours but in different classes, you may claim the prior copyright of the graphic was designed and created on your own. Since a copyright certificate includes the registration date of the copyright, if it is earlier than the application date of the trademark, the copyright certificate can be submitted as evidence to prove the copyright, stating that the trademark application infringes the existed copyright.

Additionally, the copyright can be claimed in an infringement complaint or lawsuit. If you haven’t obtained a trademark registration so far, but there are counterfeiters copying your products and using a confusingly similar logo to yours, you may take any appropriate legal actions based on your copyright. The copyright certificate can be used as prima facie evidence to prove the ownership of the copyright and claim damage to the infringer.

However, a copyright certificate cannot take the place of all the copyright evidence. As an official certificate issued by CPCC, the documentation has a certain authority, but a sole certificate cannot prove all the specific facts regarding copyright, such as the creation of work, the originality, the actual date of publication of the work, etc. The registration of an original copyright registration does not require substantial examination, so it takes effect as a record with a formality check. A concrete claim may be rejected without other circumstantial evidence in a specific case. To enhance the fact of creation before the relevant date, such as the application date of challenged trademark, other materials may be needed to further support the claims. So, the author shall keep the drafts of the work, the relevant contracts on the appointment of the creation of the work, or any other documents that can prove the work is originally created by the author.

Copyright registration is important to protect a work, and sometime may help to protect your trademark in a different way, but not completely. Both trademark and copyright registration are significant to different kinds of IP rights, and necessary registration will always be the best way to maintain your rights and interests.