Patents, Copyrights and Trademarks: What’s the Difference?
Trademarks, copyrights and patents are all important tools for protecting the intellectual property of your business — but which one you may need at a specific time will depend on the situation. We’ll dive into the differences between each one, the benefits and protections they offer and how to obtain the form of intellectual property protection that your business needs.
What is a patent?
A patent is a legal proof from the U.S. Patent and Trademark Office (USPTO) that you invented or discovered a new product, process or design. It grants your business entity exclusive ownership rights for a set period of time and prevents your competitors from copying your design without your permission. Patents can include a food product formula, a new manufacturing process, a software app with innovative functionality, a new color of citrus fruit or even a unique door knob design.
There are three categories of patents: utility patents, design patents and plant patents. It’s important to understand the differences between them, so you know which to apply for and don’t waste time and money, as the process to get a patent can be time consuming and expensive.
Utility patent
Utility patents are the type of patent that people are most commonly thinking of when considering patenting a product or process. A utility patent focuses on the use or functionality of the new product or process, not its appearance.
These patents cover a broad range of inventions that businesses typically seek to protect and defend from competitors. Utility patents might apply to inventions as diverse as a new mechanism for collapsing an umbrella, a new formula for glue or a software program that offers new capabilities to users. Utility patents are typically valid for 20 years.
Design patent
Design patents cover the unique “look” or appearance of a product, not its functionality. For example, a design patent can be awarded to a typeface font or a specific shoe. Design patents typically expire after 15 years. However, if your product is unique in both look and function, you may want to apply for both a design and a utility patent.
Plant patent
Plant patents specifically apply to the invention or discovery of new plants, such as flowers or fruit trees. The new plant must be successfully reproduced by cutting or grafting; plants that already exist in nature or that grow from tubers cannot be patented. Plant patents typically cover 20 years.
Applying for a patent can be a complicated process. You’ll need to understand patent laws and USPTO procedures to prepare and file your paperwork. Many businesses turn to a registered patent attorney or agent to aid in this process.
The USPTO provides a searchable directory you can use to find patent practitioners in your area. If you prefer to apply for a patent on your own, the USPTO also offers legal assistance resources for independent investors, entrepreneurs and small businesses.
There are two types of patent applications:
- Provisional patent application: This is a less formal, lower-cost option that establishes an early filing date, allowing you to use the term “patent pending” for 12 months. This can be a good way to essentially reserve your spot in line while you refine your invention or seek additional funding — but to actually be considered for a patent, you’ll need to file a nonprovisional application within a year.
- Nonprovisional patent application: This is the full, formal application. It requires multiple types of documentation, including detailed descriptions, drawings of the invention and claims defining the scope of protection you’re seeking. This application is what the patent office uses to determine if your invention is patentable.
Applications can be submitted online through the USPTO website. You’ll be charged a basic filing fee, a search fee and an examination fee, though the exact cost of these fees will depend on the type of patent you’re applying for and if you qualify for any fee discounts.
What is a copyright?
A copyright is the proof that you are the author of an original creative work, like a song, book or drawing. To be copyrighted, the work must be completed in some physical or digital form; you cannot copyright just an idea.
In addition, the work must have been created by a human, not a computer or AI. While you can copyright something you created with the help of AI tools, how much AI assistance is required to make something not copyrightable is decided on a case-by-case basis.
Copyrights are automatic in the sense that as soon as you create an original work, you own it. However, registering your copyright with the U.S Copyright Office establishes documentation that can help you legally defend your ownership if necessary.
What is a trademark?
A trademark is something that is uniquely identified with your business or one of your products in the mind of consumers. It can be a distinctive word, name, phrase, sound, scent, color, symbol, font or logo, to name a few examples. The purpose of trademarks is to protect “trade,” or commerce, so you’ll need to use your trademark in business to keep it active.
A trademark automatically comes into existence as soon as you start using it in your business, and you can start using the ™ symbol immediately. However, this only provides protection in the immediate areas where your business is currently providing your products or services. If you want nationwide protection, you can register your trademark with the U.S. Patent and Trademark Office. Once the trademark is registered, you can use the ® symbol.
Trademarks are valid only in conjunction with a specific class of goods or services. For example, Apple Records could trademark its name as a record studio while Apple Computer trademarked its name as a computer company. If businesses are so different that a typical consumer would not be confused by their use of the same word, color, font etc., they can each use it in their trademark.
Patent vs. trademark vs. copyright
Trademarks, copyrights and patents may all be useful in establishing and defending your legal ownership of your intellectual property assets. But knowing how they differ from each other can save you money and time wasted on pursuing the wrong types of protection. Here’s a brief overview of how they compare.
| Trademark | Patent | Copyright | |
|---|---|---|---|
| Definition | Branding of your product or company | Invention of new product or process | Authorship of creative work |
| Example | Using a unique logo | Inventing the telephone | Writing a book |
| Application cost | $350 per class applied for | Based on size and type of filer and application; can total several thousand dollars | $45 or higher, based on type of work copyrighted |
| Length of protection | Renew at fifth, 10th and every subsequent 10th anniversary | Utility and plant patents: 20 years Design patent: 15 years | Author’s life plus 70 years; up to 120 years if published anonymously or as work for hire |
| Key benefit | Protect branding | Prevent copying of inventions | Control use of your creative work by others |
In some cases you may be able to apply for multiple types of intellectual property protection.
For example, if you create an original drawing of a cartoon character, you could copyright it as a work of art and then trademark it as a logo if you use it to mark and identify products you sell. You could even then get a design patent for your logo applied to a t-shirt.
If you create a new type of flower and receive a plant patent for it, you could also use its image as your business logo and trademark it.
One company has a trademarked logo, which it repurposed in a unique way as a t-shirt design and was able to obtain a design patent on the t-shirt, too.
Where patents, copyrights and trademarks don’t apply
While patents, copyrights and trademarks provide various layers of protection, they don’t cover everything. Competitors may be legally allowed to “steal” certain aspects of your business, including:
- Ideas and concepts: General ideas, concepts and discoveries can’t be patented or copyrighted. For example, you can’t patent the general idea of a smart home device, though you may be able to patent a specific mechanism within that device.
- Facts and data: Factual information, like scientific formulas and mathematical principles, are considered common property and are considered fair game.
- Methods of doing business: While specific processes might be patentable, general business methods are often not. For instance, a unique sales strategy might be difficult to protect.
- Expired patents and copyrights: Once a patent or copyright expires, the invention or work becomes public domain and is free for anyone to use.
- Anything for noncommercial use: Noncommercial reproduction of your work, such as in academic settings for teaching purposes, is considered “fair use” and does not require your permission.
To protect your business from competitors moving into the market, it’s important to build a strong brand and implement an effective marketing strategy. This can help to create customer loyalty and differentiate you from your competitors, so even if a competitor copies your product, customers may choose to stick with the original brand they already trust.
Frequently asked questions
Utility patents cover how something functions, trademarks apply to how a business is branded and identified and copyrights are specifically used to prevent unauthorized duplication of creative works. In addition, the plant patent covers the invention of a new plant, and the design patent covers unique ornamental designs of or on products.
Under current U.S. law, a copyright lasts the full extent of your lifetime plus 70 years, in most cases. If the work was created anonymously or under a pseudonym, or for a company as a “work for hire,” the copyright lasts the shorter of 95 years beyond first publication or 120 years from creation, whichever occurs first.
Yes, patents, copyrights and trademarks can all be sold. If you’re buying a business, check the paperwork to make sure any intellectual property you need is part of the sale.
Utility and plant patents last for 20 years, but design patents last for 15 years. Which one you choose to apply for depends on the type of intellectual property you’re trying to protect.
The U.S. Patent and Trademark Office states that the five common types of trademark are a word, phrase, symbol, design, or a combination of these elements. However, it adds that other uniquely identifying aspects of your brand may also qualify for trademark registration, such as sounds, scents or colors. The important common requirement of a trademark is that the characteristic is distinctively identified with your particular business or product.
In some cases you can both apply for a patent and also register a copyright for your work. For example, if you wrote a software app, you could copyright the code itself as a creative work and also apply for a utility patent protecting the innovative functionality of the software program.
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