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1. Flow of trademark registration (from application to registration) Application: Decide on the...
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Nowadays, the use of characters as a mainstay of brand strategy has become accepted by the public, and the use of characters in business has become commonplace. So, is there anything we should be careful about so that the characters we create ourselves are not imitated?
Table of Contents
Characters are not protected by copyright
It may be surprising, but the character itself is not protected by copyright. This is because copyright law stipulates that what is protected is the concrete expression of an idea. Characters that are just ideas are not subject to copyright protection.
On the other hand, character designs (illustrations, etc.) that specifically express the idea of a character are protected by copyright.
For example: In Doraemon, the idea itself such as ``a cat-shaped robot from the future saves a bullied boy'' is not protected by copyright, but illustrations that specifically depict Doraemon (manga frames, anime footage, etc.) are protected by copyright.
Copyright protection and trademark registration
You might think that since character designs are protected by copyright, there is no need to register them as trademarks. However, copyrights and commercial rights differ in their protection methods and targets. Also, from the perspective of protecting your brand, we recommend registering your character design as a trademark.
Copyright arises from the very moment a work such as an illustration is completed. There is no need to go through any administrative procedures. The right lasts 70 years after the copyright holder's death (or 70 years after publication if the author is a corporation). Since rights arise even without the formalities, character designs may be considered to be protected by copyright, but it cannot be said to be mandatory.
In order to claim that a character design created by someone else is a copyright infringement by copying your character design, you must prove that the character design is your original work and that the other person's character design was created based on your character design. Even if a character design created by someone else is similar to your own character design, if it happens to be similar, that is, if the other person created it on their own (without any reference to your own character design), your rights do not apply. In other words, it is easy to obtain rights, but difficult to enforce them.
On the other hand, trademark rights cannot be obtained without filing an application with the Patent Office. The procedure costs money and time. However, if another person's character design is similar to your registered character design, you can exercise your rights regardless of whether the other person created it on their own. As long as they look similar, it's fine. In other words, although it takes time to obtain rights, enforcement of rights is easier than with copyright. Additionally, trademark rights can be renewed every 10 years. As long as you continue to renew, your rights will continue to exist, making it possible to maintain your rights semi-permanently. In the first place, in most businesses that use character designs, the character design functions as a brand and has the power to attract customers, so you should obtain trademark registration from the perspective of brand protection (copyright is not a right to protect a brand).
Comparison of copyright and trademark rights
| Copyright | Trademark rights | |
|---|---|---|
| Creation of rights | Generated automatically | Application procedure required |
| Exercise | Difficult to prove | Relatively easy |
| Duration | 70 years after death | 10 years (semi-permanent with updates) |
| Brand protection | Not applicable | Target |
Character name
So far we have talked about character design. So what about character names? Unfortunately, character names are unlikely to be protected by copyright. This is because it is a name after all and is limited to a few characters.
However, just like character design, character names can also have the power to attract customers in business. If you see products with the names ``Yuji Kojo'' or ``Tanjiro Kamado,'' you would imagine that they are goods related to ``Jujutsu Kaisen'' or ``Demon Slayer: Kimetsu no Yaiba.'' This is also more than just a character name and may be used as a brand, so we recommend that you obtain trademark registration for your character name as well.
About the Unfair Competition Prevention Act
If the character design and character name are well-known, they may be covered by the Unfair Competition Prevention Act. However, in this case, as with copyright, there is a problem in that it is difficult to enforce rights (for example, you have to prove that your character design or character name is famous).
Point: In general, when dealing with unfair competition prevention laws and copyright laws, in most cases, these are unavoidable if trademark rights have not been acquired. We strongly recommend acquiring trademark rights as an initial investment.
Character business and trademark rights
Currently, the most famous example of a character business is "Kumamon." Of course, both the "Kumamon" picture and the word "Kumamon" are registered trademarks. Kumamoto Prefecture has set up a special website and accepts permission to use Kumamon at any time.
https://kumamon-official.jp/kiji0031655/index.html
Trademark Registration No. 5540075"Kumamon" (text)
Trademark registration No. 5540074(shape)
What is merchandising right?
By the way, when developing a character business, you often hear the term merchandising rights, but Such rights do not exist under the law. It is simply recognized as a colloquial term that summarizes trademark rights, copyrights, and rights granted under the Unfair Competition Prevention Act.
Since there is no merchandising right, character businesses must be dealt with under individual laws. As already mentioned, copyright and unfair competition prevention laws may not be sufficient. To protect your brand and avoid getting into unnecessary trouble, we recommend that you obtain trademark registration for your character design and character name.
Inquiries regarding character protection
Have trouble protecting your character?
Please feel free to contact us using the form below.
AUTHOR
Takefumi SUGIURA （杉浦 健文）
EVORIX Intellectual Property Law Firm Managing Patent Attorney
Supports clients across IT, manufacturing, startups, fashion, and medical industries, covering patent, trademark, design, and copyright filings through trials and infringement litigation. Specialized in IP strategy for AI, IoT, Web3, and FinTech. Member of the Japan Patent Attorneys Association (JPAA), Asian Patent Attorneys Association (APAA), and Japan Trademark Association (JTA).
