Difference Between Trademark, Copyright and Patent

By: James Bunts

You’ve started a business enterprise and now are looking to protect your intellectual property, great! There are a variety of legal instruments available to accomplish your business goals. These are: patent, copyright, trademark, trade secret, and right of publicity.

Patent

Patents grant the owner an exclusive right, or monopoly, for a limited time on the claimed subject matter disclosed in the issued patent. Article 1, Section 8, Clause 8 of the United States Constitution grants Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” At the time of the Founding Fathers, the term “science” was more closely related to the term “natural philosophy” or “knowledge” of today and the term “art” was more closely related to the terms “craft” or “technique” of today. Restating Article 1, Section 8, Clause 8 with a focus on patents, Congress is to promote the progress of useful arts, by securing for limited times to inventors the exclusive right to their respective discoveries. Importantly, a patent is a right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States. The patent system can be viewed as a reward arrangement to those who discover things useful to the nation.

Patent eligible subject matter is intended to include “anything under the sun that is made by man.” Chapter 35 of the United States Code specifies that “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”

An example of a process is the method for making cereal. An example of a machine is the ice rink resurfacing machine, aka Zamboni. An example of an improvement to an article of manufacture is the improvement in paper-bag machines. An example of a composition of matter is acetyl salicylic acid, aka Aspirin. Additionally, business methods may be patent eligible, such as the method and system for placing a purchase order via communications network, aka Amazon’s 1-Click. Furthermore, there are plant patents for specially cultivated species of plants. An inventor can also protect the unique ornamentation of their invention through a design patent, such as found in Apple’s iPhone design patent.

A significant distinction for patents compared to other types of intellectual property is that the published patent documentation must enable someone of ordinary skill in the art to make and use the invention. A patent is not enforceable until it has passed examination from the United States Patent and Trademark Office and has issued.

Essentially, if you have created something you can use, it is possibly patent eligible. To get the patent, your idea must be new (cannot have already existed) or an obvious combination of existing art (to someone of ordinary skill in the art). The patent attorneys at Bold Patents have particular expertise to explore these criteria, make professional opinions on patentability, draft patent applications, and litigate patent infringement to help entrepreneurial innovators get the intellectual property protection they need to succeed.

Copyright

Restating Article 1, Section 8, Clause 8 with a focus on copyrights, Congress is to promote the progress of science, by securing for limited times to authors the exclusive right to their respective writings. At the time of the Founding Fathers, the term “science” was more closely related to the term “natural philosophy” or “knowledge” of today. 17 U.S.C. § 102 specifies that “copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Examples of works of authorship include the following categories: literary works; musical works, including lyrics; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. An example of a copyrighted work is The Happy Birthday Song, which only recently passed into the public domain in 2016.

A copyright provides the owner of the copyright the exclusive right to reproduce and distribute copies, prepare derivative works, as well as perform or display the work publicly. To author an original work, a human must have independently created the work and the work possesses at least some minimal degree of creativity. The author does not need to register the work in order to have the copyright (such as when posting pictures or video to the internet), but the author must register the copyright to sue another party for infringement. The patent attorneys at Bold Patents have particular expertise to support creators get the intellectual property protection they need to succeed.

Trademark

A trademark is a word, name, logo, symbol, device, or combination thereof, used to identify the source of goods or services to prospective purchasers. Thus, trademarks allow prospective customers to weigh the reputation of the manufacturer of the goods or provider of the services. Unregistered trademarks fall under common law, while registered trademarks enjoy certain advantages under the Lanham Act.

An example of a trademarked name is “NIKE,” used to identify clothing, footwear, ect along with the “swoosh” logo. A “device” trademark could include sound, smell, or color. Examples of a sound mark include the MGM lion roar and the Lucasfilm THX theme. While trademarks can certainly take a wide variety of forms, trademarks cannot be the essence of the product. For instance, smell marks are available, but the perfume Chanel No. 5 is trademark ineligible as it is the essence of the product.

Characteristics of a product’s packaging, such as color or shape, can also be trademarked if those features identify the source of the goods. Additionally, specific labels, wrappers, containers, or advertising materials could be protected under trademark. In exceptional circumstances, the subject matter of a design patent can subsequently be protected under trademark protection, as in the case of Coca-Cola’s bottle having a “distinctively shaped contour” that was well-known in the market. Although fonts cannot be trademarked, infringement could still occur when trying to imitate a trademark’s unique typeface, such as used by Coca-Cola. A slogan or catch phrase, such as “The Greatest Show on Earth,” can also be trademarked and enforced after acquiring secondary meaning in the market. As trademarks acquire secondary meaning in the mark and notoriety with consumers, the marks become a valuable business asset to the mark owner that can be leveraged to create revenue through licensing agreements.

Trademarks make it easier for consumers to quickly identify the source of a given good and differentiate similar products. Trademark law provides remedies for infringement when a mark conflicts with the phonetic sound, appearance, meaning, or commercial impression of another trademark. While registering a trademark is not required to obtain protectable rights, registering a trademark provides significant advantages over common law rights alone.

The advantages of registration include a legal presumption of your ownership of the mark, the ability to record your U.S. registered mark with U.S. Customs and Border Protection to prevent importation of infringing foreign goods, the right to use the federal registration symbol ®, the ability to bring an action concerning the mark in federal court, and the use of the U.S. registration as a basis to obtain registration of the mark in foreign countries. The patent attorneys at Bold Patents have particular expertise to make professional opinions on trademark eligibility, draft trademark applications, and litigate trademark infringement to help entrepreneurial manufacturers and service providers get the intellectual property protection they need to succeed.

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