05 Aug What’s the difference between a patent, trademark and copyright?
Written by Arabella Chen and Matthew S. Johnston
You thought of it. You created it. Your business depends on it. It is your business.
It is likely intellectual property.
Intellectual property (IP) ranges from artwork, inventions, designs, brands and logos to music, medical drugs, and more. IP laws exist to protect and/or recognize the creator via acknowledgement and financial compensation.
There are three main categories of protection: patents, trademarks, and copyright. Which one is right for you? Here’s how to determine which is the right fit. (Here is why it’s important).
Patents
Patents are protection for new inventions. The key here is invention, not idea. One must have actually invented the product, process, and/or design in order to obtain a patent.
An invention must be the correct subject matter, novel, useful, and non-obvious in order to qualify for a patent. We’ll dive into what each of these terms mean below.
The correct subject matter refers to the type of nature of the invention. Processes, machines, articles of manufacture, and compositions of matter are directly covered by the Patent Act 35 U.S.C. §1-390. Thus, a physical device will pass but software or a data structure not tied to any physical machine will not. Music and literary compositions also do not qualify as patents but usually will as a copyrighted material.
Whether an invention is novel or not is determined by whether the public has been informed of it yet. That means in order to be patentable, the invention cannot have been known, reported, described to the public before the applicant has filed the patent application.
There, however, is a one year grace period before the filing of the patent application. Disclosures about the invention may be made in this one year period but must not exceed this period. Exceeding the period means losing all right to file a patent application.
Patents also operate under a first come, first serve basis. That means if someone else has already obtained a published patent for the same invention, one cannot file.
Takeaway: Keep the invention under wraps!
Usefulness simply means the invention must have a purpose. If patenting a new pharmaceutical compound, one must prove and specify a practical utility for the compound. In most cases of physical technology, this is relatively easy to prove.
Non-obvious means that if the invention is an improvement over what the industry has previously seen, the improvement must be obvious to an ordinarily skilled person in the field of the invention. Obvious is difficult to define but the general practice is that the new invention’s features cannot be found within a previous patent or a combination of previous patents.
Let’s say the invention meets all the requirements. Great. What specific protection will the patent offer?
The United States Patent and Trademark Office defines a patent as the, “grant of a property right to the inventor”.
The patent owner gains control and the rights over the production, usage, distribution, and importation of their creation. Likewise, the patent becomes something the owner can license, sell, mortgage, or assign to others as they see fit. Patent rights are exclusionary, meaning the right is not a positive one for the inventor but a negative one, meaning the inventor gets to exclude everyone else.
Patents also do not prevent others from copying the invention (patents will make your invention more visible). What a patent does is enable the owner to obtain compensation if someone copies your invention (called patent infringement).
A new patent lasts for 20 years and US patents are only valid in US territories. After 20 years, anyone can utilize the invention for free. Patents are non-renewable in the States.
Trademark
Starbucks. “Just do it”. The glass curve of a Coca Cola bottle.
These are strongly associated with brands and evoke emotions, associations, reputations. These are trademarks.
A trademark is defined by the United States Patent and Trademark Office as “A word, phrase, design, or a combination that identifies your goods or services, distinguishes them from the goods or services of others, and indicates the source of your goods or services.”
A trademark protects a name, design, or sound from being used and/or registered by others without permission. It also prevents others from using the trademarked good in similar and related fields.
Without a trademark, competitors are free to misuse your brand components to create a brand that’s virtually indistinguishable from yours, creating confusion, potential reputation damage, and revenue loss.
If another business is trying to use your trademarked brand, it comes down to whether a consumer is likely to get confused. If yes, the trademark protection kicks in and the other business cannot proceed.
For example, Starbucks is trademarked. So no other coffee or cafe out there can be called Starbucks, nor can they use any derivative of the Starbuck mermaid logo. But if a car dealership wants to call themselves Starbucks? No problem. The business is different enough that consumer confusion isn’t likely. This is because trademarks apply to specific goods and services. There are 45 categories for trademarks so your business goods or services get classified accordingly. This allows for some similar words being used on different products without a chance of confusion. The analysis for confusion consists of 13 factors and is very fact dependent.
Trademarks can be renewed forever, so long as the trademarked goods are still being used in commerce.
Ready to protect your brand? Here’s some guidance to get you started.
Copyright
Copyright law covers work in 8 categories: “(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.” 17 U.S.C. 102(a).
Although not specifically listed, computer software can also be copyrighted as a literary work (although most people would hardly consider computer code “literary.”
Once again, an idea cannot be copyrighted. The work must be in a fixed medium of expression. Putting your ideas down on a website is considered a fixed medium of expression eligible for copyright protection.
Copyright protects the owner’s right to reproduce, distribute, and profit off of their work.
Copyright technically exists as soon as the work is created but a creator should register to get further protection and the ability to pursue lawsuits for infringement. Additionally, poor man’s copyright, i.e. sending yourself a copy of the work does not hold up under law.
Not registering the original work means that if something goes wrong, the owner must actively seek actual damages, which are harder to prove. Registering the copyright means the ability to seek substantial statutory damages and enable the owner to receive royalties from permitting others to use their work.
Copyright lasts for the author’s lifetime plus 70 years and requires no renewal.
Summary
So which intellectual property category is right for you?
- Get a patent if you have a brand new invention.
- File for a trademark if you want to protect the name or design of your brand.
- Pursue a copyright if you want to claim ownership of and protection for your artistic work.
Whether you’re looking to file a patent, copyright, or trademark, we’re here to help. Learn more about our flat fee services for intellectual property applications or schedule a consultation with us to get the process started.
About the author
Arabella Chen graduated from Frederick High School where she spent four years on the Mock Trial team (with Matt Johnston as the attorney coach), sparking her interest in law. She is currently a senior studying biology at Duke University and spends her time alternately researching global health impacts and legal concepts. When not combing through journals or writing, Arabella can be found cooking (pesto pasta, anyone?) and riding horses anywhere she can manage.