Often times people confuse the use of a trademark for a copyright; a patent for a trademark; a copyright for a patent; or vice versa. Well, I’m here to clarify things so that you will know the difference and unique purpose of each device. While all three of these intangible assets are forms of intellectual property, each of these tools provides different protection for your brand.
A trademark is a brand identifier that is used to distinguish goods or services from other manufacturers or service providers. Typically, a trademark is used to protect a word, name, slogan, logo, design, sound, color or even a smell. Among other requirements, in order to be afforded protection, however, the mark must be unique. Therefore, generic words or phrases and common designs or slogans cannot act as a trademark.
Many people tend to confuse trademarks for copyrights, and while some trademarks may also be protected through the use of a copyright (more on that under Copyrights), the two devices serve very different functions. The function of a trademark is to establish brand recognition by consumers for the good or service you provide.
Common law trademark protection extends limited rights to the owner at the moment the mark is used, however for maximum protection, federal trademark registration should be obtained through the USPTO. Additionally, unlike a copyright or a patent, once a trademark has been registered, as long as the trademark is timely renewed and is in continued use by the owner, it will never expire.
Copyrights are used to protect original artistic and literary work. This intellectual property device protects creative expression such as songs, movies, books, poetry, commercials, photographs, sculptures, web content and more. A copyright is an essential component of brand protection as a business can copyright its advertising commercials, books (i.e. course or program workbooks or materials), podcast and YouTube content and more. In fact, some trademark assets may also be afforded copyright protection, such as where a logo is copyright protected for its creative design or even a business slogan that is also used as a jingle.
Like trademarks, copyright protection is automatic once it has been fixed in a tangible medium. However, among the most notable benefits of registering your copyright is the ability of the copyright owner to sue in a federal court and to seek statutory damages plus attorney’s fees for infringement. Unlike a trademark, copyrights do expire. The typical copyright length is for the life of the author plus 70 years, although the time period for protection may vary depending on other factors pertaining to authorship.
Patents are used to protect inventions, such as solar panels, machines, or engines. There are two different types of patents that can be issued by the USPTO – a design patent and a utility patent. Design patents protect the appearance of an invention and lasts for 14 years from the date issuance. A utility patent protects the functionality of an invention and is more desirable than a design patent due to its broader protection. Its protectability is for 20 years from the date of filing.
Patents are the most expensive, time consuming and difficult intellectual property assets to attain compared to copyrights and trademarks and should not be sought without the counsel of a licensed patent attorney or agent.
Knowing the difference between each of these devices and their function, you can better understand the significant role each asset plays in adding value to a business’ brand. For more information on how these property rights add value, check out my blog here.
While Hebert-Thomas Law, PLLC does not provide patent registration services, should you need help obtaining trademark or copyright registration for your brand, please click here to schedule a consultation. I look forward to helping you “protect your brand and butter!” ™