Copyright vs. Trademark vs. Patent: What is the Difference?

Intellectual property refers to works created by the mind. These can include inventions, visual art, literature, music, designs, symbols, and other creations. There are several types of intellectual property rights that can protect these types of works from wrongful infringement by others. However, people are often confused about the types of intellectual property secured through trademark, copyright, and patent law.

If you are a business owner or entrepreneur, it is important to understand the law that applies to your situation. Copyright, trademark, and patents protect vastly different creations, and each has its own registration process. Additionally, it may sometimes be appropriate to file registration applications for more than one type of intellectual property right — such as in cases involving certain types of products or inventions.

What is a Trademark?

A trademark is the type of intellectual property right used to protect the mark that represents your brand. They are used to safeguard the mark that sets your business apart from others and allows consumers to identify your goods or services. Not only does a trademark give the owner the protective right to use the mark in commerce, but it also prevents other entities from using a mark in commerce that is confusingly similar.

Nearly anything that distinguishes your brand and makes it unique can be trademarked, including:

  • Slogans
  • Designs
  • Phrases
  • Symbols
  • Words
  • Names
  • Sounds
  • Smell
  • Motion

While you have some rights to a trademark once you begin using it in commerce, your protections will be limited in scope and geography. In order to secure your brand and prevent others from using your mark in connection with their products or services, it is essential to register your trademark with the United States Patent and Trademark Office. USPTO trademark registration offers broader and nationwide protection from potential infringement. Additionally, a trademark can last indefinitely as long as the mark is in use in commerce and the registration is maintained and renewed at the necessary intervals.

What is a Patent?

The USPTO is the federal agency that grants patents and registers trademarks. But it is critical to be aware that these two types of intellectual property are entirely distinct — and the application process is different for each. While trademarks apply to identifying marks, patents protect technical inventions. Patents can provide intellectual property rights for most technology, ranging from tools used in the home, machinery, equipment, software, and chemical compounds.

There are three types of patents that inventors should know about, including:

  • Utility patents— This type of patent can cover a useful machine, manufacture, process, or composition of matter, as well as a new or useful improvement.
  • Design patents— These patents apply to ornamental designs that appear on a functional item.
  • Plant patents— Those who have invented, discovered, or reproduced a new plant variety may apply for a patent to protect it.

Patents last for a limited period of time as long as they are maintained. However, unlike a trademark, a patent cannot be renewed upon the expiration of its term. Once a patent expires, the intellectual property becomes part of the public domain and others can market your invention freely.

What is a Copyright?

People commonly think of copyright when it comes to intellectual property, but it is crucial to understand the type of works it can protect. A copyright can help to safeguard an original work of authorship and gives you the exclusive right to reproduce, distribute, and perform your creation. Although you are the owner of a work once you create it, when you register a copyright with the U.S. Copyright Office, others are prevented from your work without permission.

Various types of original creative works may be copyrighted, such as:

  • Literary works
  • Music compositions
  • Sound recordings
  • Pictorial works
  • Dramatic works
  • Choreography
  • Motion pictures
  • Sculptures
  • Compilations

Significantly, to copyright your work, it usually must be in physical form — an original artistic expression must be documented by writing or in another tangible medium to be copyright protected. Copyright protection generally lasts for the lifetime of the creator, plus 70 years after their passing.

Contact a Knowledgeable Trademark Attorney

Understanding the type of intellectual property rights your work requires can be overwhelming. But if you are a business owner, it is vital to shield the slogan, design, or logo that represents your brand with a registered trademark. An experienced trademark attorney can advise you and guide you through the process of registering your trademark with the USPTO.

The Trademark Lawyer Law Firm, PLLC offers strategic counsel to entrepreneurs in various industries and helps to ensure your most valuable assets are adequately protected. With more than 5,500 trademarks successfully registered with the USPTO, we are committed to providing high-quality legal services at reasonable rates. Contact us for a complimentary consultation.

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FAQ

What are Trademark Application Suspensions?

Suspensions are when your application is on hold. There are various reasons a trademark application can be suspended. However “likelihood of confusion” with prior application(s) filed and submission of foreign application are the most common reasons the USPTO may suspend an application. During a trademark suspension period, your lawyer will provide guidance on the next steps and whether it might be best to file an argument or pursue a coexistence agreement.

What are Disclaimers for Trademarks?

A disclaimer usually refers to a statement which indicates that you are not claiming exclusive rights to use the word(s) or a design element in your trademark application. A disclaimer allows for registration without creating a false impression of the registrant’s rights.

A good example of this is disclaiming “café” if your services are for a café.

What is the Supplemental Registry?

If a trademark is not eligible for the Principal Registry, there is sometimes an option to register on the Supplemental Registry.

In cases where the USPTO finds the trademark application is merely ornamental, merely descriptive, or primarily geographically descriptive, the USPTO may allow the application to be registered on the Supplemental Registry. However, over time, the mark may acquire distinctiveness and possibly become eligible for the Principal Registry.

What is the Date of First Use?

Two dates must be specified in a trademark application:

Date of First Use Anywhere: The “anywhere” refers to use in the U.S. or elsewhere. This is the date the goods were first sold or transported, or the services were first rendered under the mark. The use must also have been bona fide and in the ordinary course of trade.

Date of First Use in Commerce: This is the date when the goods were first sold or transported, or the services were first rendered under the mark in interstate or international commerce. The use of the mark must have been bona fide and in the ordinary course of trade.

What is the Renewal Timeframe for a Trademark?

The renewal timeframe for a trademark is between the 9th and 10th year anniversary of the trademark registration, and then in ten-year intervals. It is important to be aware that the USPTO also requires a registrant to provide an affidavit at the 5th and 6th years of ownership stating that the trademark is still being used in commerce. Failure to comply with the renewal timeframes or the affidavit requirements will result in the cancellation of the trademark registration.