Most people have never consulted with an intellectual property attorney, but still understand the most basic principle of “IP”: that creations or inventions are owned like you might own a house or a baseball card collection. The terms “copyright,” “patent,” and “trademark” protect different kinds of intellectual property. Each week I see examples of writers for respectable publications using these terms erroneously, and even interchangeably. Here is your quick guide to understanding what kinds of intellectual property are protected by each one.
As I discussed in my previous post, trademarks are usually words, phrases, logos, or symbols used in connection with the sale of goods and services, which indicate the source of those goods and services. Trademarks are extremely valuable assets to any business because they are a key to branding. They also help businesses distinguish their products from those of competitors. Here are just a few examples of well-known marks: SAMSUNG, ARBY’S, PETSMART, and ITUNES. Also, think of the competitions between COKE and PEPSI, IPHONE and ANDROID, or MCDONALD’S and BURGER KING. You may have a strong preference for one of these products over the other. You associate the qualities and characteristics of each product with its trademark. One thing that sets trademarks apart from copyrights or patents is that rights to a mark can theoretically last forever. The mark just has to continue being used properly, and any required maintenance or renewal filings must be made on time.
Copyrights are different from trademarks in that they protect creative works. More specifically, they protect: “original works of authorship fixed in a tangible medium of expression.” This is the type of protection that covers the content of movies, books, songs, artwork, websites, photos, and even choreography. Owning a copyright gives you several exclusive rights to your content. Only the copyright owner can distribute or reproduce copies of the work, perform or display the work publicly. They also have the exclusive right to create works that are considered to be derivative (meaning the new work is based on the copyrighted material, such as creating a movie version of a book). Copyrights eventually do expire, at which point the copyrighted material goes into the “public domain.” However, the term of protection has been extended multiple times. You may have heard that the “Happy Birthday” song has not yet fallen into the public domain despite the fact that it was created prior to 1900. That demonstrates how long the copyright term really is.
Patents protect more practical forms of intellectual property, like inventions. The basic requirements of a patent include novelty (or newness), usefulness, and non-obviousness. When someone wants to acquire a patent for their invention, they are essentially trying to gain exclusive rights to use, make, distribute, and sell the invention. In exchange for these rights, they are disclosing what the invention is and how it works. That disclosure on the inventor’s part is significant, because the term of the patent is limited. The invention it covers will fall to the public domain after the term ends. And the term of a patent is much shorter than the copyright term.
As you can see, there are significant differences between trademarks, copyrights, and patents. They each cover different subject matter, give different rights to their owner, and give protection for different lengths of time.
Are You Unsure About What Kind of Intellectual Property Protection You Need?
If you need any help determining which type of intellectual property you are dealing with, please feel free to call me at (314) 479-3668, email me at kevin@yourtrademarkattorney.com, or complete the contact form found on this page to schedule your free initial consultation today. I look forward to speaking with you.
