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 depends on the situation. We’ll dive into the differences between each, the benefits and protections each offers 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 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. 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 difference 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. Design patents typically expire after 15 years. But, 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.
What is a copyright?
A copyright is the proof that you are the author of an original creative work, such as 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. Also, the work must have been created by a human, not a computer.
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, a name, a phrase, a sound, a scent, a color, a symbol, a font or a logo, to name a few examples. The purpose of trademarks is to protect “trade,” or commerce, so you must 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. But, this only provides protection in the immediate areas where your business is currently providing your products or services, so 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.
THING TO KNOWTrademarks 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.
Patents 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 | $250 to $350 per class applied for | Based on size and type of filer and application; can total several thousand dollars | $45+ 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 created 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. 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.
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 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. If you acquire an existing business that owns copyrights, the ownership rights transfer to you. Non-commercial reproduction of your work, such as in academic settings for teaching purposes, is considered “fair use” and does not require your permission.
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; but adds that other uniquely identifying aspects of your brand may also qualify for trademark registration, such as a sound, a scent or a color. 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.