Trademarks and patents and copyrights, oh my!

There are a lot of different types of intellectual property, and the various forms of intellectual property protection come with their own unique rights and guarantees. They are also designed to protect specific types of intellectual property, and if you try to get the wrong type of protection, it won’t give you the legal defense you need.

Here’s a look at the difference between a trademark, a patent, and a copyright and what each one protects so that you know which one is the right fit for you.

What is a Trademark?

A trademark is a word, phrase, symbol, design, or combination thereof which is used to identify your goods and services. The word can refer to a trademark (which is used for goods) and a service mark (which is used for services).

Your trademark makes your products easily distinguishable, not just in a business and legal sense, but more importantly, to consumers. They allow consumers to recognize your product and brand, which helps foster brand loyalty and associate a given product with your brand experience. It’s also crucial for protection against fraud.

Anyone can put a “™” mark on any business name, phrase, logo, graphic, etc., and claim it’s their trademark.  However, you don’t get to use the “Ⓡ” symbol unless you’ve actually filed and was issued registered trademark.  The biggest difference between a trademark with a ™ and Ⓡ is that, with a registered trademark, you can prevent other people from using your mark — it’s a legally more powerful asset.

What a Trademark Protects

Owning and using a trademark is a source of frequent confusion.

Basically, a trademark allows you to attach a certain word, phrase, or symbol to your brand. Because trademarks don’t expire, you hold the right to the trademark for the lifespan of your product or service. However, you start owning a trademark once you start using it and, in order to retain ownership, you must maintain continuous use of it.  With a registered trademark, you also need to regularly use the mark in commerce.

This does not mean that you legally own a phrase and can prevent others from using it in markets outside of your specific area of registration. Your trademark only gives you the right to protect how the word or phrase is used in connection to specific types of goods or services. McDonalds couldn’t sue people every time they said, “I’m lovin’ it,” but they could sue a copycat franchise marketing the same burgers and fries using the same phrase.

What is a Patent?

A patent is an exclusive right granted to an inventor to make, use, sell, or import their invention. It grants the inventor exclusive rights to the patented invention for a set period of time in exchange for public disclosure of the invention.

What a Patent Protects

A patent may be granted to anyone who invents or discovers a new or useful process, machine, manufacture, composition of matter, or any combination thereof. There are three types of patents in the United States:

  1. Utility patents
  2. Design patents
  3. Plant patents

Utility patents account for 90% of patents issued in the U.S. They protect a new and useful process, article of manufacture, a machine, or a composition of matter.

Design patents often go hand-in-hand with utility patents. Where utility patents protect how an invention works, design patents protect how an invention looks.

A plant patent is exactly what it sounds like–a patent issued to a person who invents, discovers, or produces a new plant capable of reproduction (other than tubers).

What is a Copyright?

Last but not least is a copyright, a type of intellectual property protecting original works of authorship as soon as the author fixes the work in a tangible form of expression.

Works are considered “original” when they have been independently produced by a human author and have an independent degree of creativity. This simply means that you produced the work on your own rather than copying it. A work is “fixed” when it is captured by the author or under the author’s authority in a permanent form, such as writing it down or recording it.

What a Copyright Protects

A copyright can protect a variety of different works, including:

  • Novels
  • Short stories
  • Poems
  • Blogs
  • Plays
  • Dance choreography
  • Movies
  • Musical compositions
  • Musical recordings
  • Architectural drawings
  • Paintings
  • Photographs
  • Illustrations
  • Computer programs

A copyright does not protect:

  • Ideas
  • Methods
  • Discoveries
  • Systems
  • Processes
  • Procedures
  • Concepts
  • Principles
  • Functionalities

Keep in mind that copyright law does not consider titles, slogans, phrases, names, familiar symbols, familiar designs, or variations on typographic ornamentation to be creative.  Sometimes copyright registration applications can get rejected if the “tangible form” on which the work is fixed has functionality — for example, I’ve had a copyright application for the layout design of a printed circuit board get rejected because the printed circuit board is essentially a functional device.

Copyright protection can also be limited in certain cases. The best example is computer software. A copyright protects your source code as you originally wrote it, but if someone copied the code and made a minor change, it may not violate your copyright.

We Take the Headache Out of IP

Is your head spinning yet? Hey, we get it. Intellectual property is hard. But it’s also a necessary evil to ensure you get the protection you need for your great idea.

Our job is to make your job easier, with expert services to guide inventors through all stages of the innovation process. So if you’re ready to tackle intellectual property the right way, get in touch to learn how we can help you get there.