Differentiating Patent Trademark and Copyright

Patents, trademarks and copyrights are forms of intellectual property protected by federal law and international treaty. There are important differences among them, which may be summarized as follows:

1. Patents protect a novel, non-obvious idea which has been reduced to a detailed writing. How detailed? The level of detail necessary in a patent application is one which permits a person reasonably competent in the particular art (subject area, industry, etc.) to follow the instructions in your application to build your invention. There is an ever swinging pendulum over how abstract the idea may be for it to be subject to federal patent, and recent important court interpretation over what constitutes “obviousness.” Expect to pay $15,000 to $20,000 for a competently prepared patent application, depending on the level of expertise of the lawyer you hire and what part of the country you live in. It is not unusual to have to wait three or four years for a patent to be issued. Costs may rise dramatically if the application is contested for any reason.

2. Trademarks or service marks are protected by law whether or not you register the mark with the U.S. Patent and Trademark Office. A mark (design, word or phrase) will be granted protection if it is being used by you for business purposes, is not already registered for a similar use, and if the meaning of the mark is not self evident from the mark itself. That is, you will not be granted a trademark for the word “Shoe” for a line of sneakers you have made and are selling. On the other hand, the mark “Shoe” may be given trademark protection as the name of a bird-like cartoon character for use in comic strips. Expect to pay about $1000 for a simple trademark application, though if you are reasonably intelligent but inexperienced, you can do it yourself on line, at www.uspto.gov, and pay only the fees (about $300 per category; as suggested above, your mark is granted for one or more particular categories. Don’t worry, the government has a category for everything, including comic strips). Even if you don’t register your mark, by notifying the public of the rights to assert to the mark, you may obtain legal protection for your unique right to use it. This is generally done by use of the “TM” symbol, and otherwise distinguishing the mark (for example, using it in all caps). Enforcing common law trademark rights are more difficult and costly than enforcing the rights under a federally registered trademark.

3. Copyrights protect forms of artistic expression fixed and reduced to writing or printing. Books, musical compositions, poetry, painting, even a web page. If it can be fixed and printed, it is subject to copyright. Like trademarks, it is not necessary to register a copyright with the federal government in order to obtain legal protection. As with trademarks, it is necessary to place the public on notice that you assert copyright to a particular work. The cost for obtaining the copyright will vary wildly depending on the nature of the work for which you apply for a copyright. In general, it is closer in cost to a trademark application than to a patent application.