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Research Article

JCR. 2020; 7(4): 4187-4193


TRADING THE COPYRIGHT AND COPYING THE TRADEMARK: IS IT POSSIBLE?

Mr. Chaitanya Joshi Prof. Dr. S.P. Rathor.

Abstract
When an original word, mark or a work is registered and used as a Trademark and different entities
respectively enjoy the exclusive right to use a Trademark as well as the Copyright in it. However
conflict between the two rights is likely to arise in situations when seemingly similar art work is
claimed by one person as their Copyright while another person asserts their right over it as a
Trademark.
As can be seen in cases involving conflicts between the Trademark right and Copyright, such cases
usually are characterized by two circumstances: using another person‟s mark, either registered or
unregistered in one‟s work which may give rise to Trademark right affirmation scenario in layman
terms a situation of „copying the Trademark‟; and the other circumstance being, use as a mark of a
work in which another party enjoys its Copyright which may give rise to Copyright infringement
scenario or in other words a situation of „trading the Copyright‟.
In this article I intend to discuss the issue regarding their potential conflict, from the perspective of a
valid Copyright holder, whose rights are infringed or threatened by a Trademark applicant. I would be
discussing the tests to be applied to bring out the real conflict, defenses that can be raised and the
possible counter claims, if any that may be raised by a Trademark applicant.

Key words: Copyright, Infringement, Trademark, Trading



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The articles in Bibliomed are open access articles licensed under the terms of the Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License (https://creativecommons.org/licenses/by-nc-sa/4.0/) which permits unrestricted, non-commercial use, distribution and reproduction in any medium, provided the work is properly cited.
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