What are Copyrights, Trademarks and Patents?
While most people understand that patents protect inventions, many small business owners are confused about the meaning and role of copyrights and trademarks.
Copyrights, trademarks and patents are each designed to protect a different aspect of intellectual property. But their protections can overlap: your business logo may be protected by both copyright and trademark, while the distinctive design on your product may be protectable by both copyright and patent.
Understanding the differences between the three types of intellectual property will help you identify the intellectual property that your business owns and determine how to best protect it.
Trademarks: Protecting Your Brand
A trademark is a word, phrase, symbol or design that identifies the source of goods or services and distinguishes them from the goods and services that others provide. Businesses commonly have trademarks in their business names, product names, logos, labels, slogans and product packaging.
Trademarks are valuable because you can use them to prevent competing businesses from adopting an identical or similar business name and logo and using it to offer similar types of goods or services. You can acquire common law trademark protection just by using your mark in your business. But common law trademark protection isn’t very strong and will probably only apply in your immediate locality. For nationwide protection and other advantages, you can register your trademarks with the U.S. Patent and Trademark Office (USPTO).
Registered trademarks have included business names, product names, symbols (the Nike “swoosh”, product names in a particular typeface (the “Coca-cola script”), package designs (the curvy Coke bottle) and sounds (the NBC chimes).
Choosing a Strong Mark
Not everything is eligible for trademark protection. Federal trademark registration is only available for marks that are distinctive and that don’t create a likelihood of confusion with existing marks. You’ll be more likely to choose a strong mark if you understand the basics of trademarks before you map out marketing and branding strategy.
When it comes to names, the strongest trademarks go to arbitrary or made-up names, like “Xerox” or “Tylenol.” Also strong are names that use a word to describe a product you wouldn’t ordinarily associate with that word, such as “Apple” computers.
Next down the line are suggestive marks that evoke a brand or product’s characteristics without actually describing them. Think “goo-gone” or “glance a day” calendars. These marks can also usually be trademarked.
A descriptive mark, such as “Ultra Clean” laundry detergent or “Yummy” cookies is difficult to trademark unless you can show that people automatically associate it with your product or service. And truly generic marks, like “car wash” can’t get trademark protection at all.
The USPTO also won’t register your trademark if it is likely to be confused with another registered trademark that covers the same category of goods or services. To minimize the chance that this will happen, it’s always a good idea to search the USPTO’s database for similar trademarks before you settle on a particular mark. A trademark lawyer can help conduct the search, interpret the results and advise you on choosing a strong mark.
Copyrights: Protecting Your Creative Work
Copyrights protect original works of authorship. For a typical small business, copyrightable works might include such things as your website, your business blog, photographs, company brochures, manuals and reports. If you are in a creative field such as photography, writing or graphic design, then most of the work you produce will be protected by copyright. However, you cannot copyright a name, including your business name.
Copyright owners have the exclusive right to reproduce, perform, display and distribute a work, and to make adaptations of it. Copyrights are important because you can use them to prevent others from copying your work.
You don’t need to do anything to secure copyright protection - it exists as soon as you memorialize your work in some sort of tangible medium, such as paper or digital or computer media. It’s not necessary to place a copyright notice on your copyrighted work, though a notice can serve as a warning to others that your material is subject to copyright protection.
It’s also not necessary to register a copyright with the U.S. Copyright office, but registration offers advantages if you ever need to sue someone for copyright infringement. Copyright protection lasts for the life of the author, plus 70 years after the author’s death.
Copyrights are always owned by a work’s author, unless ownership has been transferred in some way. If your employees create copyrightable work as part of their job, your business will automatically own the copyright to those works. But if a consultant, outside company or independent contractor creates the work, then they own the copyright unless they have transferred it to you through an assignment or work for hire agreement. And if you create work for other people, you will own the copyright to that work unless you transfer it to them. A copyright owner may also grant a license that allows others to use a copyrighted work.
Patents: Protecting Your Inventions
While copyrights protect creative works and trademarks protect your brand identity, patents protect inventions.
A patent gives an inventor the right to exclude other people from making, using, selling or importing an invention - but only for a specified period of time. In exchange for this right, the inventor discloses the invention to the public in the patent application.
The only way to obtain patent protection in the United States is to apply for and receive a patent from the USPTO. To get patent protection internationally, you must apply for patents in other countries.
Only useful inventions are patentable. And to obtain a patent, you must submit a complete description of the patent’s subject matter - you can’t get patent protection for an idea for an invention. The patent application process is complex and highly technical, and most people hire a patent attorney or patent agent to assist them with the process.
There are three types of patents:
- Utility patents protect new and useful processes, machines, manufactures or compositions of matter. They protect the functional and technical aspects of an invention, as opposed to its design elements or ornamentation. Utility patents can be issued for such things as machines, hardware, computer hardware and software, chemical formulas, cosmetics and pharmaceuticals. The owner of a utility patent can exclude others from making, using or selling an invention for up to 20 years. You must pay maintenance fees to maintain a utility patent.
- Design patents are for new, original and ornamental designs embodied in or applied to manufactured items. In other words, they protect the aesthetic aspects of a product as opposed to its interior workings. The owner of a design patent can prevent others from making, using or selling the design for 14 years. There are no maintenance fees for design patents.
- Plant patents are for new and distinct, asexually reproduced plant varieties that are invented or discovered. The holder of a plant patent can exclude others from making, using or selling the plant for up to 20 years. There are no maintenance fees for plant patents.