Together, the U.S. Patent and Trademark Office and the U.S. Copyright Office recognize three types of intellectual property (IP) protection. These consist of trademarks, patents, and copyrights. Each protects different types of intellectual property, and have different rules regarding fair use.
In this article, we’ll go over the basic differences between trademarks, patents, and copyrights. However, remember that you should always consult an experienced lawyer before making any big decisions about how to protect your intellectual property.
What Is A Trademark?
Trademarks are protected distinguishing marks of a good or service. These can be names, slogans, symbols, or any other kind of branding. In all cases, trademarks are distinct traits that give customers an easy way to tell one product from another.
Note that trademarks are divided into 45 different classes. A trademark in one class does not carry over into another class. For example, Pied Piper Music Group and Pied Piper Pie Shop would fall under different trademarks because one sells music and the other sells food.
Trademark infringement occurs when one company sells a product or service that is too similar to another brand’s trademark. When that happens, the company holding the trademark has a legal right and obligation to defend their trademark.
In most cases, this is as simple as sending a cease and desist letter. However, large-scale legal battles can and do break out over trademark ownership—for example, see the long-running trademark dispute between Apple Records and Apple Inc..
Examples of Trademarks
Any unique piece of branding can be a viable trademark. For this reason, large and successful companies tend to trademark each and every piece of their brand individually. For example, here are just a few of trademarks associated with Microsoft’s Windows Operating System:
- The name “Windows”
- Each version of the Windows logo
- The distinctive “Windows chime”
- Even certain fonts such as Wingdings
Trademarks can even apply to a wide variety of intellectual property beyond these cases. However, notice that the design components of the Windows operating system are not included. That’s because product designs are typically covered by copyright, rather than trademarks.
Why Apply for a Trademark?
Holding a trademark can be a lot of work. However, it’s also one of the best ways to establish and grow a new brand. If you don’t apply for trademarks there’s nothing to stop other companies from profiting off of your brand by using similar advertising. Worse yet, if that company files for a trademark, you could end up having to completely change your brand.
On the other hand, holding a trademark will protect you from most types of infringement. In addition, holding a trademark will protect your brand from many other kinds of unfair competition. “Unfair competition” in this context refers to business practices that create deliberate customer confusion. This includes counterfeits, knock-offs, unauthorized reselling, and the like.
Not every use of your trademark counts as infringement. If the USPTO decides that someone else’s trademark is unlikely to cause customer confusion, you have neither the power nor the obligation to take legal action against it.
This is “fair use,” and includes things like parody, comparative use, and nominal use (e.g., saying the name of your product).
Maintaining a Trademark
Before you apply for a trademark, it’s important to understand that the USPTO will expect you to maintain it. The USPTO requires regular reports of your trademark’s use, as well as a reapplication every ten years. Failing to use your trademark is considered “abandonment,” and may result in the USPTO indicating that your trademark has been abandoned in their database.
For this and many other reasons, it’s highly advisable that trademark applicants hire an experienced trademark lawyer. A good trademark attorney will help you keep on top of these deadlines, as well as advising you on vital trademark decisions.
How to Apply for a Trademark
Before you apply for a trademark, always perform an extensive search of the USPTO’s trademark database. If you find a trademark similar to your own, it’s time to consult a trademark lawyer. He or she will be able to advise you on whether or not your brand is sufficiently distinct. If it’s not, you may have to make changes before you submit your application.
Once you’ve checked the database, you can start filling out the online application. Keep in mind that you’ll need to pay a processing fee for every trademark class you apply under. The USPTO will not refund this fee if they reject your trademark.
For this reason, it’s important to get it right the first time.
On your application, you will have to select one or more trademark classes. This is a very important decision, because only trademarks within the same class are considered to infringe upon one another. On our website we provide an extensive series on the trademark classes to understand the ins and outs before you apply.
What is a Patent?
Patents are a special type of intellectual property protection for new inventions and product designs. In order for an idea to be patentable, it must be “novel and non-obvious.” This means that you can’t patent a product that’s already in widespread use among a number of companies.
In addition, you can’t patent a vague idea—you must carefully lay out the specific details of your design.
Patent infringement works similarly to trademark infringement. However, unlike trademarks, you don’t have to worry about abandoning a patent. Utility patents, for example, last for 20 years regardless of whether or not you are using them.
Types of Patent
The USPTO recognizes three kinds of patent: utility, design, and plant patents.
- Utility patents are the most common type. Utility patents grant intellectual property rights for new machines, manufactures, compositions of matter, or processes. They last for twenty years following the date of application, or less if you fail to pay your maintenance fees.
- Design patents grant intellectual property rights over ornamental designs on manufactured objects. Because the designs are ornamental, there is no need to prove that they are useful. Instead, all you need to do is illustrate the visual distinctiveness of your product. Design patents last for fifteen years following the date of application.
- Plant patents grant intellectual property rights over the asexual generation of new plant species. Like utility patents, plant patents last for twenty years.
Examples of Patents
While the plant patents are relatively easy to figure out, the other two can sometimes be confusing. The best way to understand the difference between utility and design patents is through examples:
- In 2015, the Walt Disney Company filed a utility patent for robotic animatronics that can mimic human action. Disney’s well-researched design plan made it easy to prove that their invention was useful, novel, and non-obvious. Note, however, that it does not include specific aesthetic or ornamental details for individual animatronics. This patent is only for the new machine they created.
- In 2011, Audi filed a design patent for a new four-door sedan. Of course, plenty of other companies have released similar four-door sedans in the years before and since. However, because this is a design patent, the only purpose is to protect the specific design of that one model (the shape of the body, the type of metal, etc.).
Defining Useful, Novel, and Non-Obvious
For your design to be eligible for a utility patent, it must be useful, novel, and non-obvious. Each of these terms has a specific meaning in US patent law.
- A “useful” invention fulfills a clear, meaningful purpose. If a person trained in your field would see meaningful utility in your invention, it’s probably useful.
- “Novel” inventions are original to their inventors. If your invention was known or in use by others before you patented it, it’s probably not novel.
- The “non-obvious” requirement essentially prohibits you from patenting minor, obvious tweaks to an existing design. If your design is different from another patent in one or two minor, non-meaningful respects, the USPTO will probably consider the design obvious.
Why Apply for a Patent?
Whether you are an individual designer or part of a company, patents are an important way of protecting your product designs. In particular, utility patents allow smaller companies with fewer resources to protect their IPs from larger, better-funded competitors. By holding a utility patent, you can force competitors to either pay the appropriate royalties for your product or to design their own.
Design patents are also very useful within a narrower space. In many industries, brands define themselves through the aesthetics of their products. Design patents are the easiest, least expensive way to protect those aesthetics. Additionally, you can apply for a design patent in places where trademarking your branding would be impossible or overly costly.
How to Apply for a Patent
If you decide you want a patent, you will have to apply within one year of publicizing your product or offering it for sale. If that deadline has already passed, it’s too late to apply for a patent. You will also want to search for similar patents on either the USPTO’s website or on Google’s specialized patent search engine.
After you’ve done so, you should work with your lawyer to develop a full patent application. This must include the following:
- A “specification.” This is an in-depth description of your design as well as the process of creating and using it. You should write it such that a person trained in your field could replicate the design easily, given the appropriate resources.
- Claims, which define the exact extent of your exclusive right to the patent. Your claims should make the question of what, exactly, you are trying to patent about your design easy to answer.
- Most patent applications will also include extensive technical drawings.
Once you’re done, you can submit your patent application online at the USPTO’s website. Please note, the specifics of the patent registration process is often very complex, and it is highly recommended to hire legal counsel.
What is Copyright?
Copyright protects your exclusive right to a cohesive work of authorship. This includes just about any artistic work, such as a book, script, or architectural work. Copyright protects a single work from being replicated, but it does not protect individual names, phrases, ideas, or designs. In this way, copyright is much more limited than trademark or patent protection.
However, copyright does have one big advantage over other forms of intellectual property protection—you already have it. By current US law, you own the copyright to a work as soon as you produce it. You no longer need to publish, publicize, or mail the work to receive copyright protections. However, it can still be a good idea to register your copyright, in case you ever need to bring a lawsuit for infringement.
Why Should I Register My Copyright?
While you do have certain copyright protections without registration, these are limited. For example, you can only sue for copyright infringement and receive restitution for statutory damages if your copyright is registered. Additionally, registering your copyright will allow you to record the registration with U.S. Customs, in order to prevent others from importing illegitimate copies of your work.
How can I Register my Copyright?
Any author can register their copyright online at copyright.gov. You will have to submit copies of your work, as well as basic documentation stating the nature of your work and authorship. You will also need to pay a fee, which will vary between $35 to $85 depending on the nature of the work.
If you become involved in a lawsuit involving your copyright, you may have to go through some hurdles to retrieve your copyright. Unlike the other types of intellectual property protection, you cannot personally search for copyrights online. Instead, you will need to fill out the Copyright Office’s online form and pay a minor fee.
As you can see, US Intellectual Property law is a complicated topic. If you plan on doing anything more complicated than applying for a basic copyright, it’s a good idea to consult an attorney first.
An experienced intellectual property lawyer can help you determine what kind of protection you need for your brands and ideas in addition to walking you through the application process.
Note: Tingen & Williams does not currently represent clients in patent matters.