Patents, Trademarks, and Copyrights: What’s the Difference?

By: Raad Ahmed

You know that you need to protect your intellectual property, but if you’ve never even been through the process before, it can be tough to know exactly which type of protection you need. There are three main forms of IP protection: patents, trademarks, and copyrights. In order to figure out which one you need, you’ll need to consider what type of work you’ve created. Below, we’ll give a broad overview of all three; if you’re ever in doubt, a good IP lawyer can help set you on the right path.

If you have an invention, such as an object that’s never existed before, or a new way of solving a problem, you need to apply for a patent as soon as possible. In that case, you’ll be dealing with the United States Patent and Trademark Office (USPTO), which offers several types of patent applications.

To prevent others from using your invention without your consent, you’ll need to apply for a utility patent. If you’ve invented a beautiful new chair, you’ll need a design patent: You can’t patent sitting, but you may be able to patent your unique design. If time is of the essence (and it often is, when you and lots of other talented adventures are working on solving the same problem), you’ll want to file a provisional application for patent. This gives your application priority over others that are filed later, and it allows you to affix the “patent pending” label to your invention, discouraging others from copying it or using it without permission.

It’s important to note that a patent is granted in exchange for public disclosure of your invention. So, even though you may have been toiling away in secret for years, you have to reveal your secrets now. With any patent application, you may need to furnish detailed explanations, technical data, and drawings of your invention.

A trademark is a unique identifier for your goods and/or services. Trademarks are granted through the United States Patent and Trademark Office.

Your trademark may be a standard character format (for example, you may wish to protect a name, but not specify the font or colors used, or any other design elements); it could be a stylized/design format (a logo); or it may be a sound mark.

One important yet tedious step: You’ll need to list all the goods and services that will be covered by your trademark. You’ll also need to search the USPTO database for similar trademarks, to be sure the one you want is available.

The USPTO also requires you to provide your basis for filing: either “use in commerce” or “intent to use.” Basically, if you are already in business, and you already use the mark on all the goods and services you listed earlier, file under “use in commerce.” If you have a startup at the business-plan stage, you probably haven’t used the mark in the course of business yet (because you haven’t conducted any business), but you may intend to do so later. In this case, file under “intent to use.” Depending on your business, trademark application fees can add up, as they are often levied “per class of goods or services.”

“Original works of authorship” qualify for copyright protection. This could include books, works of art, web articles, movies, or photographs. Copyright protection entitles you to control the distribution of your creation. No one else may reproduce your copyrighted work, or show it to the public without your permission.

Only the form of expression is protected by a copyright—not the content of what you’ve created. This is a crucial consideration if you’ve invented a product, for example. You can copyright a description of the product, but unless you’ve also obtained a patent, it would be entirely legal for someone else to start manufacturing your invention. Your description is protected by the copyright, but your ideas are not.

Unlike patent and trademark protection, copyright protection is automatic. As soon as you create the work, it’s copyrighted. Still, it’s often advisable to go through the process of registering your copyright with the U.S. Copyright Office. This is because a registered copyright could help you win in litigation someday. In fact, registration is required if you wish to sue for copyright infringement.

It’s possible to apply for any of these forms of protection—patent, trademark, or copyright—on your own. But if you have high hopes for your business and your IP, trying to get through the process without an attorney probably isn’t worth the short-term savings. Hire a competent IP lawyer who will make sure everything is protected from the get-go. Someday you could be very glad you did. #Patents #Trademarks #Copyrights


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