What are the Differences Between Trademarks, Patents, and Copyrights?

By: Jacob Tingen, Esq

Together, the U.S. Patent and Trademark Office and the U.S. Copyright Office recognize three types of intellectual property (IP) protection. These consist of trademarks, patents, and copyrights. Each protects different types of intellectual property, and have different rules regarding fair use.

In this article, we’ll go over the basic differences between trademarks, patents, and copyrights. However, remember that you should always consult an experienced lawyer before making any big decisions about how to protect your intellectual property.

Trademarks

What Is A Trademark?

Trademarks are protected distinguishing marks of a good or service. These can be names, slogans, symbols, or any other kind of branding. In all cases, trademarks are distinct traits that give customers an easy way to tell one product from another.

Note that trademarks are divided into 45 different classes. A trademark in one class does not carry over into another class. For example, Pied Piper Music Group and Pied Piper Pie Shop would fall under different trademarks because one sells music and the other sells food.

Trademark infringement occurs when one company sells a product or service that is too similar to another brand’s trademark.  When that happens, the company holding the trademark has a legal right and obligation to defend their trademark.

In most cases, this is as simple as sending a cease and desist letter. However, large-scale legal battles can and do break out over trademark ownership—for example, see the long-running trademark dispute between Apple Records and Apple Inc..

Examples of Trademarks

Any unique piece of branding can be a viable trademark. For this reason, large and successful companies tend to trademark each and every piece of their brand individually. For example, here are just a few of trademarks associated with Microsoft’s Windows Operating System:

> The name “Windows”
> Each version of the Windows logo
> The distinctive “Windows chime”
> Even certain fonts such as Wingdings

Trademarks can even apply to a wide variety of intellectual property beyond these cases. However, notice that the design components of the Windows operating system are not included. That’s because product designs are typically covered by copyright, rather than trademarks.

Why Apply for a Trademark?

Holding a trademark can be a lot of work. However, it’s also one of the best ways to establish and grow a new brand. If you don’t apply for trademarks there’s nothing to stop other companies from profiting off of your brand by using similar advertising. Worse yet, if that company files for a trademark, you could end up having to completely change your brand.

On the other hand, holding a trademark will protect you from most types of infringement. In addition, holding a trademark will protect your brand from many other kinds of unfair competition. “Unfair competition” in this context refers to business practices that create deliberate customer confusion. This includes counterfeits, knock-offs, unauthorized reselling, and the like.

Fair Use

Not every use of your trademark counts as infringement. If the USPTO decides that someone else’s trademark is unlikely to cause customer confusion, you have neither the power nor the obligation to take legal action against it.

This is “fair use,” and includes things like parody, comparative use, and nominal use (e.g., saying the name of your product).

Maintaining a Trademark

Before you apply for a trademark, it’s important to understand that the USPTO will expect you to maintain it. The USPTO requires regular reports of your trademark’s use, as well as a reapplication every ten years. Failing to use your trademark is considered “abandonment,” and may result in the USPTO indicating that your trademark has been abandoned in their database.

For this and many other reasons, it’s highly advisable that trademark applicants hire an experienced trademark lawyer. A good trademark attorney will help you keep on top of these deadlines, as well as advising you on vital trademark decisions.

How to Apply for a Trademark

Before you apply for a trademark, always perform an extensive search of the USPTO’s trademark database. If you find a trademark similar to your own, it’s time to consult a trademark lawyer. He or she will be able to advise you on whether or not your brand is sufficiently distinct. If it’s not, you may have to make changes before you submit your application.

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