One of the most frequently asked questions I get is “what is the difference between patents, trademarks and copyrights?”. These intellectual properties may be the greatest assets of a business.
“Trademarks” are the logos, names or symbols that are used to refer to a product or products. “Service marks” are the logos, names or symbols that are used to refer to a service or services. Together they are often generically referred to as “trademarks” whether they are relating to a product or service. These marks are the distinguishing logos, names or symbols that are used by a business to differentiate their product or service from their competitor’s. Imagine the golden arches that symbolize McDonald’s or the crown that symbolizes Burger King. The purpose of trademark law is to avoid confusion of the public in the marketplace and to protect the goodwill that has been gained by the use of the logo, name or symbol. For example, Burger King is a valuable trademark of a national hamburger chain. If a hamburger restaurant wanted to open with the name “Burger Queen”, this would likely constitute an infringing trademark. Trademarks are registered with the U.S. Patent and Trademark Office.
Copyrights are the intellectual property rights used to protect “original works of authorship”, including literature, art, music, choreography, video games, CD-ROM’s, flow charts, articles and designs. The copyright gives the owner rights to reproduce the work, create new works from the original work, perform the work publicly, duplicate the work, or display the work. The difference between copyrights and trademarks can be confusing to people. Copyrights apply to the written or recorded expression of an idea, not protection of the subject matter itself. For example, it is possible (and recommended) to copyright the words and/or music to a song, but you cannot copyright the subject of the song. Copyright law requires three criteria be met: the work must be original; it must be in a tangible form such as on paper, tape, disk, etc.; and it must be creative. To illustrate these criteria, if someone creates a painting of a girl holding a flower, the painting design may be copyrighted. The actual subject matter of the painting (the girl and the flower), however, cannot be copyrighted. Other painters or photographers could also paint or photograph the girl and the flower and that would not be infringement of the painter’s copyright as long as it was not a duplicate of the painting. Copyrights are registered with the Copyright Office of the Library of Congress.
Patents are the intellectual property rights that protect a unique invention or discovery. They are granted to individuals or corporations (or companies) in three categories: utility, design and plant. Hundreds of thousands of inventors file for patents each year. Patents give the holder of the patent the right for 20 years to prohibit others from producing or manufacturing a product that infringes on the patent. To qualify for a patent, the invention must be a new and unique creation. For example, the manufacturer of Puffs tissues holds patents on its tissues because they were new and unique by adding lotion to the tissue. In order to protect the product, an inventor should not publicly sell or use the invention until it is patented.
Patents are registered with the U.S. Patent & Trademark Office. The procedure for applying for a patent is quite complex and requires the expertise of an attorney who specializes in patent law. Most patent attorneys have a background in engineering which helps facilitate understanding the invention. The patent application must be very detailed and include a drawing of the work. The application and drawing must be sufficiently detailed to enable someone else to reproduce the invention. An inventor of a utility or plant patent is given a 20-year monopoly on the product. Design patents are protected for 14 years.
Unlike patents, trademark registration is not required to protect a mark. You can create “common law” rights (non-statutory) by just using the mark. In fact, in order to maintain the mark, the holder must continue to use it to identify the goods or services. When there is a dispute, the courts protect the first user of the mark. In other words, the use of the trademark is what gives the holder the rights, not the registration. Once a mark is registered with the U.S. Patent and Trademark Office, the holder is presumed to be the first user and therefore granted rights against other infringing marks. Unlike patents, trademark protection lasts indefinitely as long as the mark is used to identify the product or service. The first step in protecting a trademark is performing a trademark search. It is unfortunate that many new businesses choose a name or logo for their product or business and use it for a while, thereby establishing name recognition, only to have to abandon it later because it infringes on a registered mark. Although it is not mandatory to register a mark, it is strongly recommended that this protection be received prior to expending resources on it. In this Internet age, registering a name and a domain name is important to protect your brand nationally. After registration, it is important that the company be diligent in protecting the mark against infringing or confusing names or logos. A great example of a company that did not properly protect its trademark was Escalator, a manufacturer of moving stairs. Escalator lost their trademark because they were not careful about how people referred to their product. Now, moving stairs are commonly referred to as “escalators” no matter who manufactures them and the company that held that valuable mark lost its rights to the protection the trademark gave. Kleenex® brand tissues is another example. That mark is still valid and very valuable because its holder has been careful to ensure that paper disposable tissues are referred to by its competitors as “tissues” and not as “kleenex” generically. So if you buy tissue, it might be Scott tissues or Puffs tissues, not Scott “kleenex”.
Protecting copyrights is even easier than trademarks. You can claim copyright protection on a work prior to its publication, by placing the copyright symbol (“©”), date of first publication and the name of the person or entity claiming the copyright. Copyrights last for the life of the author of the work plus 50 years. If the creator is a business, the copyright lasts between 75 to 100 years. Registering a copyright with the U.S. Copyright Office provides further protection by providing notice to everyone of your prior claims on the work. If the creation is intended for national or international distribution, it is recommended that it be copyrighted with the Copyright Office of the Library of Congress. The application is quite simple and inexpensive.
Puffs tissues are an excellent example of the differences between patents, trademarks and copyrights. The company holds patents for the design or invention of disposable tissues with lotion in them. The company has trademarks on their name and logos (puffy letters of the name “Puffs”). Lastly, they hold a copyright on the description and other wording that is on their tissue boxes.
As you can see, a copyright, trademark or patent can be your most valuable asset and should be protected. Your intellectual property may be your organization’s key to success.
THIS ARTICLE IS NOT INTENDED TO PROVIDE LEGAL ADVICE. IF YOU WOULD LIKE TO DISCUSS HOW THIS INFORMATION RELATES TO YOUR SPECIFIC SITUATION, PLEASE Contact Nancy Lanard.
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