Differentiating patent, trademark and copyright law is straightforward once you know the categories of creations each segment of law protects. Patent law protects inventions, trademark law protects commercial identities, and copyright law protects literary and artistic works. Together, we call this legal protection Intellectual property law.
In the United States, a patent is a property right granted by the federal government for an invention of a mechanical nature that allows the inventor to exclude others from making or selling the same invention.
There are three types of patents:
1) Utility Patent, which, in the words of the U.S. Patent and Trademark Office, covers ” any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof”;
2) Design Patent, which covers any original and ornamental design for an article of manufacture;
3) Plant Patent, which covers any new and distinct variety of plant the inventor can asexually produce.
Each of these patents protects an original idea that can be implemented or produced physically. Patents are the only form of intellectual property protection that must first be granted by government by the submittal and approval of a detailed application. An application for a patent is submitted to the U.S. Patent and Trademark Office (USPTO), and, once issued, protects the inventor for twenty years.
Like patents, trademarks are also issued by the U.S. Patent and Trademark Office. Unlike patents, you don’t have to apply for trademark protection. While the application process can remove any doubt about the legitimacy of a mark (e.g. does someone else already use it), all one has to do to invoke trademark protection is to use the recognizable symbols (“TM”, “SM”, and ) alongside the mark they wish to protect.
As stated in the opening paragraph, a trademark protects a commercial identity. In other words, a trademark is a symbol, name, word, phrase or device used in conjunction with a product or service that identifies the source of that product or service. For example, a shoe with the word “Nike” or the well-known “swoosh” identifies that shoe as a product of the Nike Corporation.
Unlike a patent, a trademark protects the maker’s identity, not the product. So, anyone can make a tennis shoe, for example, they just can’t make the tennis shoe and put the “swoosh” or word “Nike” on it.
Of course, you don’t have to be a large company to benefit from trademark protection, particularly in a digital world where more modest levels of trade can still reach worldwide. If you are selling a product or service where your identity counts (e.g. you provide unique, greater quality or better service compared to your competitors), then you can benefit from trademark protection. Trademark prevents others from capitalizing on any goodwill and positive reputation you generate due to your hard work and superior product.
Copyright protects original literary, dramatic, musical, artistic intellectual creations and is governed on the national level by the U.S. Copyright Office (USCO). While patents protect inventions and trademarks protect identities (and both involve the written word and artistic depictions to certain extents), copyright protects works where the primary nature of the original creation is the writing or artistic representation.
A copyright is available for both published and unpublished works and allows the author to exclude others from copying the work. It is important to remember that even if you purchase a copy of a protected work, such as a book, CD, or sculpture, you are still subject to copyright. The mere ownership of a copyrighted article does not give you the permission to copy it. Only the owner of the copyright can give such permission.
Like trademark, there is no requirement to apply with the USCO to benefit from copyright protection. Prior to publishing the creation, the author need to properly use the term “copyright” or the copyright symbol “” with the year of publication and the name of the person or entity reserving the rights. Still, there are distinct advantages to using the USPTO and USCO before publishing work to ensure that you fully benefit from intellectual property protections. Both agencies’ websites provide a wealth of information to get you started.
Differentiating patents, trademarks and copyrights can be tricky if you don’t know what types of creations each protects. Keeping in mind that patents protect inventions, trademarks protect identities, and copyrights protect authors will help you identify both those creations that are protected and those that should be.