It is very easy to confuse copyright infringement with trademark infringement as they are both intellectual properties, but refer to different things. The US Copyright office and US Patent and Trademark office define these separately.
If your content has been stolen DMCA.com can help you determine the best approach for takedown. To get started, click here to Start Your Takedown
What is Trademark vs Copyright?
Copyright as defined by the US Copyright office:
"Protects original works of authorship including literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed."
Trademark as defined by the US Patent and Trademark Office:
"A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name."
To make this a little clearer copyright infringement would be if the text or images from your site have been copied from site www.yoursite.com and placed on www.theirsite.com . A possible example of trademark infringement would be the name of www.yoursite.com has been taken and manipulated to www.your-site.com although they may embody the same concept but none of the actual content of your site has been used. The intention is often to drive traffic to their site and not yours.
Is it copyright or trademark infringement if photos or videos been stolen?
This is a major problem on the net. Having your photos stolen, and it can be even more embarrassing if they are private photos you never intended to have released to the public.
Things to consider:
- Did you shoot the pictures or videos for a website?
- Were you paid for the photos or videos you shot?
- Did you sign a model release?
Unfortunately, if any of these apply you will have to contact the owners and possibly work out a deal with them. When you signed a release, you gave them permission to use your image. Do not send a DMCA takedown notice if you consented or were compensated for the photo shoot. We've had many people contact us in the past who have wanted to have their pictures removed even though they signed a model release and were paid.
If your private photos are leaked to the internet and you have not given the websites permission to use your photos you have every right to have the content removed.
How can a DMCA Takedown help me remove trademark vs copyright infringement?
Even if your stolen content is trademark, DMCA.com can still help with takedown through our additional takedown services. Submit the takedown form and our DMCA.com professionals will assist you with having your stolen content removed. For copyright takedowns, the DMCA Takedown request process is a well established and accepted internet standard followed by website owners and internet service providers everywhere. When content is removed from a website or internet platform at the request of the owner of the content. Any owner of content has the right to process a takedown notice against a website owner and/or an Online Service Provider (e.g. ISP, hosting company etc.) if the content owner's property is found online without their permission.
Click here to Start Your Takedown
DMCA.com Fast Tip
Sending a takedown notice is easy. Anyone can do it. However not all takedowns are the same. There are many variables regarding the creation and processing of takedown notices and determining whether it should be filed as copyright or trademark is the best place to start.
What is needed to file for takedown of trademark vs copyright content?
Three main pieces of information are needed to get started filing a DMCA Takedown Notice:
1. Infringing URL
Where on the internet is your stolen content located? What is the link that you want the content removed from? Be sure to provide the URL or website/webpage link of the content you want removed. If the stolen content is an image or video located on a website provide the direct link of the content contained in the site. Copy and paste the infringing text, or provide the URL of the infringing image if required.
An example link would look like: https://www.badguy_site.com/webpage/image_2
2. Source URL
Where was your content located when it was stolen? Was it on your social media profile? Was it from your own website? Provide the exact URL where it was stolen from, even if the content has already been removed from its original location. The original URL is still valuable to the notice. If it was not online you can reference cell phone, computer, or camera etc. If it was online such as a website or cloud storage provide the link to the exact page it was stolen from. You can upload the original content to a cloud storage service and provide that URL with an explanation of where it was originally stolen from.
An example link would look like: https://share.icloud.com/photos/my_original_content
Alternatively, describe where it was stolen from such as: Smartphone, Laptop, Hard Drive, etc.
3. Description of Ownership
What is the content owner's name and how was the content stolen? How is this content yours? How do you own it? Did you create it, buy it, copyright it? Who is claiming ownership of the content? Who is authorized to file the DMCA Takedown? When did you create the content and when was the content stolen?
An example description would look like: "My photo I took of myself on my camera was stolen from my Google Drive and was posted on this website without my knowledge and I would like it removed."
If you are unsure how to collect the information for these three categories the Professional Takedown Team at DMCA.com can help with the answers. Click here to ask us about your situation.
Who can file a for takedown of trademark vs copyright content?
- social media users and participants
- copyright owners
- content creators/owners
- content publishers or distributors (with permission of the content or copyright owners)
- code writers and publishers
- NFT owners
- subject contained within the content and published without permission (special considerations may be required)
If the lists above don't describe your situation by all means ask. Click here to Ask a question!
What kind of websites process trademark or copyright takedown requests:
Infringing content is taken down from many different websites and platforms.
Here is an example list where content is removed online:
- by the by the ISP or Hosting company of the website that is publishing the infringing content. This occurs because the website owner has not voluntarily complied with a DMCA Notice and the ISP or Hosting company must comply with the Takedown notice.
- by the website owner upon receipt of a DMCA Takedown Notice from the, or on behalf of, the content owner, distributor, publisher etc.
- from a UCG (User Generated Content) Platform (like Facebook and TikTok), upon receipt of a DMCA Takedown Notice sent by or on behalf of the infringed content owner, distributor, publisher etc.
- by the website owner, upon receipt of a DMCA Takedown Notice from the website owner's ISP / Hosting company. This would occur when ISP / Hosting company receives a notice sent by or on behalf of the content owner, distributor, publisher etc.
- when an infringing website is taken down or taken "offline" by its ISP or Hosting company. This occurs because the website owner does not voluntarily comply with a Takedown notice as described above.
What countries process trademark or copyright takedowns?
Most countries accept the standard DMCA Takedown Notice form and process. Although the DMCA Takedown is part of US Copyright law, a DMCA Takedown Notice is often used and accepted throughout the world and not exclusive to the United States. However, many countries have their own copyright laws specifically related to the removal of content from internet service providers and site owners within their borders. Which service providers do and do not accept the standard DMCA takedown notice form and process is dynamic and constantly changing. DMCA.com professionals are aware of these constant changes and are able to convert the information submitted through the standard DMCA Takedown signup form to suit specific countries and/or service providers within the legal process they require.
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Trademark vs Copyright: Understanding the Differences
When it comes to protecting creative works, individuals often encounter two essential legal concepts: trademarks and copyrights. Although these terms may seem similar, they serve distinct purposes in safeguarding intellectual property.
Trademarks: Securing Brand Identity
Trademarks primarily focus on safeguarding brand identity, such as logos, slogans, and brand names. These distinctive marks help consumers identify and differentiate products or services from competing entities. Registering a trademark and becoming trademark protected grants the owner exclusive rights to use, license, or sell the mark within the jurisdiction of registration, typically in connection with specific goods or services.
Trademark Registration
To obtain trademark protection in the United States, applicants must file an application with the United States Patent and Trademark Office (USPTO). The USPTO carefully evaluates the proposed mark to ensure it is distinctive and not confusingly similar to existing trademarks. Once registered, the trademark holder can prevent others from using a similar mark that might lead to consumer confusion or dilution of the brand's reputation.
Copyrights: Safeguarding Creative Works
Copyrights, on the other hand, protect original creative works, such as literary, artistic, musical, or dramatic compositions. This includes novels, paintings, musical compositions, films, and other expressive forms of art. Copyrights grant creators exclusive rights to reproduce, distribute, display, perform, and create derivative works based on their original creations.
Unlike trademarks, copyrights are automatically granted upon the creation of the work and do not require formal registration. However, registering a copyright with the appropriate copyright office provides additional legal benefits. In the United States, the U.S. Copyright Office oversees copyright registrations.
Musical Compositions and Sound Recordings
In the realm of music, both trademarks and copyrights play crucial roles. Musical compositions, encompassing the melodies and lyrics of a song, are protected by copyrights. Copyright holders can control the recording, distribution, and public performance of their compositions.
Sound recordings, on the other hand, refer to specific performances or recordings of musical compositions. While the underlying musical composition is protected by copyright, sound recordings have separate copyright protection. This means that different individuals or entities may hold copyrights for the same song, with one party owning the copyright for the composition and another for a particular sound recording.
Creative Commons Licenses and Public Domain
While copyright protection is typically automatic, some creators choose to share their works with others under specific conditions. Creative Commons licenses allow copyright holders to grant permissions for others to use their works while retaining some control. These licenses define the specific terms under which others can use, modify, or distribute the copyrighted material.
Public domain refers to works that are not protected by copyright or whose copyrights have expired. These works are freely available for anyone to use, modify, or distribute without seeking permission or facing legal consequences.
Trademarks and copyrights serve different purposes in protecting intellectual property. Trademarks focus on brand identity, while copyrights safeguard original creative works. Understanding these distinctions is crucial for creators, businesses, and consumers alike. By familiarizing themselves with the trademark and copyright laws, trademark applicants and copyright holders can navigate the complexities of intellectual property protection and ensure their works are appropriately safeguarded.
Related DMCA.com FAQ's
- What is a DMCA Takedown?
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- Creating a Takedown case using DMCA.com
- UK Based DMCA-Takedown or Cease and Desist Process
- What if my entire website has been copied?