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Do you know the difference between copyright and trademarks?

Edited by crossaffliction as of Mon 10 Aug 2015 - 02:41
Your rating: None Average: 4.7 (6 votes)
72% (13 votes)
28% (5 votes)
There is no difference
0% (0 votes)
Votes: 18


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If you're fishing if this article would be worth writing I would say yes. Flayrah may have a more educated readership, however, it may be useful to have an article that explains the difference. Particularly how it would pertain to furry works. It may draw in people who didn't know they didn't know the difference.

People typically don't willfully share that they don't know something. They'll Google it, learn the difference, then answer yes.

I'm the only no vote so far, but that's because copyright itself is a mess and I haven't concerned myself with these things quite yet as I haven't made many works myself. Might be good to know though.

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You'd be surprised how many ostensibly intelligent people still get it wrong. So let's make it simple:

Is the thing or idea being protected a symbol, shape, design, word or phrase, set of colors, or other such succinct representation of a business entity within a specific industry? If so, then what you are talking about is trademark.

The name and design for a character or species could be the subject of a trademark. One would have to register it, defend it against becoming generic, and continually re-register it with the USPTO or equivalent entity in your jurisdiction, with additional steps probably needed to register the mark in other jurisdictions, which is why, for the most part, it's not a practical tool for most of the creators in the fandom to use.

If what is being discussed does not match the above, it's very likely not trademark.

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If you're in the USA, and protecting a service branded through associated advertisements, illustrations or sounds, you get a service mark. They're effectively the same as trademarks, just applying to different classes. WikiFur is a registered service mark. The term used to identify an unregistered service mark is SM, rather than TM.

And about those classes: there are 45 of them, and a trademark will only protect you in those you actually use. So, you might bake a cake or print T-shirts saying "Anthrocon", and as their marks are only registered in "Educational and entertainment services, namely, providing motivational and educational speakers", it would be harder to prosecute it as a trademark violation (but it might be viewed as passing off, especially since Anthrocon does print their own T-shirts). In addition, if the actual "paw in Anthrocon circle" logo was reproduced, it would be a copyright violation.

You also can't just think up a name, register it as a trademark, and never do anything with it, like a patent. You have to actually be baking cakes, or at least be planning to (and subsequently provide proof of having done so for protection to continue). That's because what's being protected is the goods or services that the word, image, sound or scent represents. No goods or services, no protection.

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One of the most famous examples of a trademark was Robert Crumb's extremely popular drawing "Keep On Truckin'". This was reproduced on T shirts, bumper stickers, psychedelic posters, and more during the "hippie" period. Nobody challenged Crumb as the creator of the image, but when he objected to some of the ways that it was used and tried to stop them by charging trademark violation, the courts ruled that it was too late. He had let so many people use it for so long without any objection that it had fallen into the public domain, and it was too late to claim ownership of the image.

Fred Patten

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Apparently that decision (which hinged on the image's use on business cards without the copyright symbol, which was required at the time) was reversed on appeal because they couldn't prove he had authorised such use.

Crumb sued Amazon in 2005 over the image's use when a search failed to find results. (Before anyone asks, I did contact Kyoht over the use of her art on our maintenance page.)

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