Legal protection of the brand character: copyright and trademark
Copyright and trademark are not alternatives, but different tools
Mixing these two modes is a typical mistake, because they protect different things. Copyright protects the image itself as a result of creative activity — a drawing, character traits, manner of movement. A trademark protects a designation as a source identifier of a product — what a buyer sees on the packaging and by which they recognize the manufacturer. GEICO Gecko is a telling example: the lizard is registered both as a verbal and as an illustrative trademark, and at the same time protected by copyright as an original artistic image. The company did not choose one of two — it took both shields at once, because they cover different risks.
| Criterion | Copyright | Trademark |
|---|---|---|
| Moment of creation | Automatically upon creation | After registration at Rospatent |
| Duration of validity | Life of the author + 70 years | 10 years with the possibility of indefinite renewal |
| What needs to be proven in a dispute | Creative nature, recognizability, originality | Fact of registration and homogeneity of goods |
| Threshold of violation | Similarity to the point of confusion | Lower — sufficient probability of consumer confusion |
| Cost and processing time | Free of charge, can be deposited for evidence purposes | 18,5 months according to the regulatory schedule of Rospatent or 6–8 months via a patent agent |
What to choose for a specific task
If a character exists only in a work and its commercial use is not planned — a copyright is sufficient, additionally secured by depositing. If a character appears on packaging, in merchandise, in advertising — without a trademark, the brand risks: a competitor may register a similar designation earlier and block the creator's use. Disney has long built its strategy precisely on multiple registrations: for Mickey Mouse, trademark registrations have been filed for dozens of versions of the image across different years, and this allows the company to maintain control over the character virtually forever through trademark renewals — even when the original film «Steamboat Willie» enters the public domain.
When a character is recognized as a protected object of copyright
Not just any drawing with a face becomes a protected character. Courts and patent offices look at the combination of features, not just one visual image.
- Creative nature — a character must be the result of independent creative work, not a compilation of widely known elements.
- Recognizability independently of context — the audience must be able to identify the character, even if it is taken out of the plot of the work.
- Independence of features — appearance, voice, facial expressions, characteristic movements form a stable image, not a set of random details.
- A stable combination of traits — it is this formulation that courts used in the case of the cartoon series «Masha and the Bear»: the plaintiff must prove that each character has a set of features that make it original, regardless of the work as a whole.
The situation in the US is similar, but with a legal nuance: in the 2023 decision by the TTAB in the case In re Joseph A. Stallard, the patent office confirmed that a character can be registered as a trademark, but only if it performs a dual function — simultaneously identifying the source of the product and remaining an artistic image. There is no absolute ban on registering characters as trademarks in the US, but a single image on the game's website is insufficient for this — it is necessary to prove that consumers associate the image specifically with a particular manufacturer.
The company has acquired the rights from the author — is it possible to produce merchandise without risk?
Formally, yes, but only if the transfer of rights is properly documented, not orally or 'by default'. A contract with a designer or illustrator must explicitly contain the alienation of exclusive rights to the character (not just payment for a sketch), a list of usage methods — including merch, licensing, derivative images — and the territory of application. If the contract only mentions 'provision of services for design development', formally the author retains exclusive rights, and any sale of t-shirts with this character becomes a violation of others' copyright — even if the brand considers itself the owner.
A separate nuance concerns the collision of regimes within Russia itself: when filing an application for a trademark, priority by date applies. If the copyright for the character arose earlier than the priority date of the trademark application and the work was already known on the territory of the Russian Federation, it may block registration under Article 9, Paragraph 1483 of the Civil Code of the Russian Federation. This means that registering a trademark without prior checking third-party copyright is not a formality, but a real legal risk of refusal or subsequent cancellation.
Using a character without permission — what to do and which mechanism is faster
The speed of response depends on which protection tools are already pre-arranged — it is too late to create evidence during the dispute itself.
- Documenting the violation — screenshots, a notarial protocol of site inspection, receipts for purchasing counterfeit goods.
- Check which protection mode works faster: if the character is registered as a trademark, the threshold of proof is lower — it is enough to show the probability of consumer confusion, without analyzing the creative contribution.
- Send a cease and desist letter demanding termination of use and compensation for damages — in most cases, this resolves the issue without going to court.
- In case of no response — file a lawsuit or with the antitrust authority, if the violation is related to unfair competition.
- If protection is based solely on copyright — prepare for a more complex process: it will be necessary to prove the originality and recognizability of the character, as was the case in disputes around 'Masha and the Bear,' where the court required evidence for each individual character, rather than the franchise as a whole.
That is why a trademark more often becomes the first line of defense in commercial disputes — with it, there is less dependence on the subjective assessment of the court.
Mistakes that deprive a brand of control over its own character
Most conflicts around characters arise not due to competitor plagiarism, but due to carelessness at the stage of creating the image.
- The absence of a written contract for the transfer of rights with a designer, illustrator, or scriptwriter — the most common reason for lawsuits from authors against their own clients.
- Vague formulations in the contract — 'right of use' instead of 'exclusive right to all methods of use, including adaptation and creation of derivative works'.
- Registration of a trademark without checking for conflicts with earlier copyrights of third parties.
- Relying only on one mode of protection — either only copyright without a TM, or a TM without depositing the original character.
- Forgotten trademark renewal: unlike copyright, which lasts for life plus 70 years after the author's death, a TM must be renewed every 10 years, and a delay means automatic loss of protection.
How to build character protection systematically, not in parts
A working model is not a choice between copyright and a trademark, but a sequential combination of both. First, the original character image is deposited — this fixes the creation date and serves as evidence in case of a dispute over authorship. Then, a contract is concluded with the author regarding the transfer of exclusive rights to the company, with a clear list of usage methods — merchandising, advertising, licensing, adaptation. After that, a trademark application is filed — word and figurative marks, preferably in several Nice Classes, if product line expansion is planned. Such a sequence covers risks from both sides: copyright protects the image and its creative uniqueness, while a trademark protects commercial use and market recognition. This is exactly how Disney proceeded with Mickey Mouse, registering new versions of the character as the image evolved, and the lack of such systematic approach became the reason for prolonged disputes around 'Cars and Bears,' where the rights of different participants were not previously clearly documented.
Copyright and trademark are not alternatives, but different tools
Mixing these two modes is a typical mistake, because they protect different things. Copyright protects the image itself as a result of creative activity — a drawing, character traits, manner of movement. A trademark protects a designation as a source identifier of a product — what a buyer sees on the packaging and by which they recognize the manufacturer. GEICO Gecko is a telling example: the lizard is registered both as a verbal and as an illustrative trademark, and at the same time protected by copyright as an original artistic image. The company did not choose one of two — it took both shields at once, because they cover different risks.
| Criterion | Copyright | Trademark |
|---|---|---|
| Moment of creation | Automatically upon creation | After registration at Rospatent |
| Duration of validity | Life of the author + 70 years | 10 years with the possibility of indefinite renewal |
| What needs to be proven in a dispute | Creative nature, recognizability, originality | Fact of registration and homogeneity of goods |
| Threshold of violation | Similarity to the point of confusion | Lower — sufficient probability of consumer confusion |
| Cost and processing time | Free of charge, can be deposited for evidence purposes | 18,5 months according to the regulatory schedule of Rospatent or 6–8 months via a patent agent |
What to choose for a specific task
If a character exists only in a work and its commercial use is not planned — a copyright is sufficient, additionally secured by depositing. If a character appears on packaging, in merchandise, in advertising — without a trademark, the brand risks: a competitor may register a similar designation earlier and block the creator's use. Disney has long built its strategy precisely on multiple registrations: for Mickey Mouse, trademark registrations have been filed for dozens of versions of the image across different years, and this allows the company to maintain control over the character virtually forever through trademark renewals — even when the original film «Steamboat Willie» enters the public domain.
When a character is recognized as a protected object of copyright
Not just any drawing with a face becomes a protected character. Courts and patent offices look at the combination of features, not just one visual image.
- Creative nature — a character must be the result of independent creative work, not a compilation of widely known elements.
- Recognizability independently of context — the audience must be able to identify the character, even if it is taken out of the plot of the work.
- Independence of features — appearance, voice, facial expressions, characteristic movements form a stable image, not a set of random details.
- A stable combination of traits — it is this formulation that courts used in the case of the cartoon series «Masha and the Bear»: the plaintiff must prove that each character has a set of features that make it original, regardless of the work as a whole.
The situation in the US is similar, but with a legal nuance: in the 2023 decision by the TTAB in the case In re Joseph A. Stallard, the patent office confirmed that a character can be registered as a trademark, but only if it performs a dual function — simultaneously identifying the source of the product and remaining an artistic image. There is no absolute ban on registering characters as trademarks in the US, but a single image on the game's website is insufficient for this — it is necessary to prove that consumers associate the image specifically with a particular manufacturer.
The company has acquired the rights from the author — is it possible to produce merchandise without risk?
Formally, yes, but only if the transfer of rights is properly documented, not orally or 'by default'. A contract with a designer or illustrator must explicitly contain the alienation of exclusive rights to the character (not just payment for a sketch), a list of usage methods — including merch, licensing, derivative images — and the territory of application. If the contract only mentions 'provision of services for design development', formally the author retains exclusive rights, and any sale of t-shirts with this character becomes a violation of others' copyright — even if the brand considers itself the owner.
A separate nuance concerns the collision of regimes within Russia itself: when filing an application for a trademark, priority by date applies. If the copyright for the character arose earlier than the priority date of the trademark application and the work was already known on the territory of the Russian Federation, it may block registration under Article 9, Paragraph 1483 of the Civil Code of the Russian Federation. This means that registering a trademark without prior checking third-party copyright is not a formality, but a real legal risk of refusal or subsequent cancellation.
Using a character without permission — what to do and which mechanism is faster
The speed of response depends on which protection tools are already pre-arranged — it is too late to create evidence during the dispute itself.
- Documenting the violation — screenshots, a notarial protocol of site inspection, receipts for purchasing counterfeit goods.
- Check which protection mode works faster: if the character is registered as a trademark, the threshold of proof is lower — it is enough to show the probability of consumer confusion, without analyzing the creative contribution.
- Send a cease and desist letter demanding termination of use and compensation for damages — in most cases, this resolves the issue without going to court.
- In case of no response — file a lawsuit or with the antitrust authority, if the violation is related to unfair competition.
- If protection is based solely on copyright — prepare for a more complex process: it will be necessary to prove the originality and recognizability of the character, as was the case in disputes around 'Masha and the Bear,' where the court required evidence for each individual character, rather than the franchise as a whole.
That is why a trademark more often becomes the first line of defense in commercial disputes — with it, there is less dependence on the subjective assessment of the court.
Mistakes that deprive a brand of control over its own character
Most conflicts around characters arise not due to competitor plagiarism, but due to carelessness at the stage of creating the image.
- The absence of a written contract for the transfer of rights with a designer, illustrator, or scriptwriter — the most common reason for lawsuits from authors against their own clients.
- Vague formulations in the contract — 'right of use' instead of 'exclusive right to all methods of use, including adaptation and creation of derivative works'.
- Registration of a trademark without checking for conflicts with earlier copyrights of third parties.
- Relying only on one mode of protection — either only copyright without a TM, or a TM without depositing the original character.
- Forgotten trademark renewal: unlike copyright, which lasts for life plus 70 years after the author's death, a TM must be renewed every 10 years, and a delay means automatic loss of protection.
How to build character protection systematically, not in parts
A working model is not a choice between copyright and a trademark, but a sequential combination of both. First, the original character image is deposited — this fixes the creation date and serves as evidence in case of a dispute over authorship. Then, a contract is concluded with the author regarding the transfer of exclusive rights to the company, with a clear list of usage methods — merchandising, advertising, licensing, adaptation. After that, a trademark application is filed — word and figurative marks, preferably in several Nice Classes, if product line expansion is planned. Such a sequence covers risks from both sides: copyright protects the image and its creative uniqueness, while a trademark protects commercial use and market recognition. This is exactly how Disney proceeded with Mickey Mouse, registering new versions of the character as the image evolved, and the lack of such systematic approach became the reason for prolonged disputes around 'Cars and Bears,' where the rights of different participants were not previously clearly documented.
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