“Can I patent my name?”
“I heard I should trademark my invention. Is that a good idea?”
Not exactly. Trademarks don’t work that way.
“You’re infringing the copyright for my brand name.”
Probably not. Maybe, but it’s unlikely.
If you’re going to talk about intellectual property—patents, trademarks, copyrights, etc.—then you want to talk about it correctly. Fortunately, you just need a few basics to get by (and speak more accurately than many of your business friends).
Here’s the most basic primer to teach you the difference between patents and trademarks and copyrights.
This will show you how to tell the difference between various types of intellectual property, including a summary of patents, trademarks, copyrights, trade secrets, and related transactional agreements.
As a bonus, after spending the next few minutes here, you should be able to determine which types of IP (that’s intellectual property) apply to your business innovations.
Without getting too legal about this, IP refers to the formal legal rights you can get for being innovative. Depending on the type of innovations you’re working on, there are different types of corresponding IP rights:
- PATENTS protect your new innovative technology or product
- TRADEMARKS protect your brand assets if you’re creating a distinctive brand
- COPYRIGHTS allow you to stop copycats of your unique creative works
- TRADE SECRETS give you protection for your valuable, secret information
- CONTRACTS (not technically IP) control all the transactions around other forms of IP
We’ll dive into each of these in more detail.
(NOTE: this post focuses on typical US intellectual property, but some people might include additional types of IP such as data rights, privacy/publicity, industrial designs, and more.)
For each type of IP, let's look at the following:
- What is protected? (including some examples)
- What is not protected ?
- How does each type of IP provide protection?
- How long does each type of IP last?
- What other things should you know?
Let’s dive in.
Patents protect physical structures and processes related to new technology, which really refers to all sorts of physical inventions, products, and processes tied to physical things and transitions.
These are often the physical things that somebody creates or invents. Additionally, you can patent the way those things are made or used.
There are different types of patents.
Typically, most people referring to patents usually mean utility patents. A utility patent protects a physical structure or a process tied to technology. Utility patents are great for inventions that do things or accomplish a function.
Some examples include the way a product is made, how a machine is used, or the physical construction of the product or machine itself. Utility patents are also perfect for pharmaceuticals, software (with some exceptions and loopholes), medical devices, environmental processes, and any new physical “thing” that you want to create from scratch.
There are also design patents that cover ornamental designs, instead of functionality. Typical design patents protect the look or style of a physical product. They don’t protect how a product works, only what the product looks like. Design patents are great for consumer products—anything from clothes and shoes to car and vehicle models to electronics devices.
One big distinction between utility and design patents is that design patents don't protect anything on the "inside" of your invention. If you can't visually see it, then you can't protect it with a design patent.
Plant patents are really specific. They protect special types of plants. Specifically, plant patents protect variants of asexually reproduced plants. If that doesn’t sound familiar, don’t worry about it. Most patent attorneys have never dealt with plant patents, either.
Patents do not cover abstract ideas, laws of nature, and mathematical expressions. These include things like the law of gravity or other laws of physics and simple mathematical equations, as well as concepts that are considered unworkable, like time travel or perpetual motion machines.
You can read more about the types of things that patents don’t protect on our blog HERE.
Patents give you an exclusive right to exclude somebody else from making selling offering to sell or using your patented invention. This is important to note—it does not give you the right to make or use or sell your patented invention. It gives you the right to exclude others from making it or using it or selling it.
This is common with intellectual property. Intellectual property often protects improvements on existing devices. And those existing devices might already have their own intellectual property protection held by other people.
Patent protection for utility patents usually lasts 20 years from the date an application was filed.
If the application takes 3 or 4 years to go through the patent examination process, that would leave you 16 or 17 years left on the life of the patent once it's granted. There are some circumstances where this term is extended a little bit, but that's an individual situation, so we're not going to address it here.
Design patents last 14 years and don't require renewals.
Plan patents last 20 years.
Patent production is a federal form of intellectual property protection. In the US, it's administered under the federal government, so state governments don't have any jurisdiction over patent rights.
Once you get your patent application filed, you can then tell people your invention is “PATENT PENDING” which can be a great status designation to share with investors and customers.
Patent ownership is really important. Make sure to get formal assignments from all the inventors, or from the former owner if you buy a patent from somebody else.
Trademarks protect things that are used to identify your brand. These usually include names of your company, products, or services. It can also include logos, slogans, and other marketing assets. And in special cases, trademarks can protect more unique brand identifiers like sounds or smells.
In general, trademarks are different from patents because trademarks protect things that are used to identify your brand, rather than the underlying technology you’re creating. However, there can be some overlap between trademarks and design patents because they can both focus on the design or look of products (sometimes this crosses over into trade dress, too).
There can also be overlap between trademarks and copyrights, if your trademarks include unique creative elements like graphics or logos.
Ultimately, trademarks offer protection for what is used to identify your brand or "the source" of goods and services that you provide.
Trademarks do not protect abstract ideas, like most intellectual property. Rather, trademark protection is reserved for specific brand identifiers.
Separately, trademarks do not give you protection across all different industries and markets. Trademark protection is limited to specific classes of products and services.
Trademarks protect against infringement by a competitor or any person using your mark or a confusingly similar mark to brand similar types of goods or services you offer. If their use is competing and might cause confusion for your consumers, then you can demand that they stop.
The protection offered by trademarks can be perpetual. This means it can last forever, as long as you pay the renewal fees with the government and you show that you're continuing to use your trademark with the goods or services for which it’s registered.
In this way, trademark protection can be very valuable because the protection for your brand doesn’t have to expire. Ever. They can be very valuable if, for example, you’re selling a company built on the value of the brand using unique.
Trademark protection comes in a couple different forms. Like patents, there are federal trademark laws and protection. Unlike patents, there are also state laws that provide a form of trademark protection, although they're not used as frequently.
Aside from federal and state laws, there's also a form of "common law" trademark protection. That means that courts recognize an inherent right in your branding, even though it's not specifically outlined in federal or state laws.
When you see a “TM” designation next to a brand or logo, that means that the owner is asserting common law trademark rights (or possibly state protection).
In contrast, the “circle R” or ® is used to designate the trademark rights are granted under federal law. You can use that only after you've had a successful examination of your trademark application. If your trademark protection is provided by state law, common law, or even in the process of being examined under federal law, you would continue to use the TM instead of the circle R.
Copyright protects recorded expressions of creative works of authorship. In other words, it protects the way you express your creativity. We often think of books, plays, statues, paintings, music, lyrics, movies, scripts, and other works of art or literature as being protected by copyright law. Copyright law protects those things once the work is in a tangible or recorded format.
If a creative work isn’t in a recorded, tangible medium, then it’s considered an abstract idea. And abstract ideas are not protectable by copyright. In other words, the idea for a movie isn’t protectable, but the written screenplay or script for a performance can be protected.
Also, book titles cannot be copyrighted. Names and slogans typically are also not copyrighted.
Copyright reserves exclusive rights to the author to reproduce, distribute, perform, or publicly display the work.
Normally, if someone creates a work of authorship and they get copyright protection with the federal government, copyright protection will last for as long as that person is alive and then for another 70 years after that person's death (with some exceptions).
Corporations can also create works, and those are usually protected for 95 years from publication.
Like trademarks, copyrights can be protected under federal law and under common law. There is no corresponding state law for copyrights.
The “circle C” or © can be used with any form of copyright protection. It's not reserved for registered marks. Unlike the circle R for trademarks, when you create any type of original work of authorship, you can put the circle C next to it immediately, even before it is federally registered.
You don't have to register your copyright before you use it (unless you want to sue an infringer in federal court). Adding your copyright designation is simply a form of notifying others that you are reserving your rights in copyright. You can use it as early as you want to. Use of the circle C designation is encouraged.
In contrast to patents, trademarks, and copyrights—which are more formal regimes for intellectual property protection—trade secrets are specifically the acknowledgement of the right somebody holds out of fairness by reserving secrets as their confidential information.
Almost anything that is held confidential can be protected as a trade secret. But you must formally protect your secrets in order to qualify. If you don't have a formal trade secret program in place for your business, then it will be difficult to enforce trade secrets rights against anyone.
You cannot protect information that's already public. Trade secrets also don’t protect secrets that don’t contribute economic value to a business or “secrets” that don’t have sufficient formal protections in place (like access controls).
Trade secret law really provides a cause of action for someone to pursue another party if they steal or otherwise misuse the trade secrets of the first person. The exact type of protection depends on whether the protection is asserted under federal or state laws.
Like trademarks, trade secrets can be protected indefinitely, as long as the information is not made public. Once it's made public, rights in the trade secret no longer apply. It doesn’t matter whether it was disclosed purposefully, inadvertently, or even maliciously.
Given the potential length of protection, trade secrets can be one of the strongest forms of protection (IF you implement sufficient formal processes). However they can be very volatile because any type of disclosure can eliminate the protection immediately.
The person owning the secret must use reasonable efforts to keep the secret confidential by limiting access, keeping records, and notifying others of its confidentiality.
Contracts are not explicitly intellectual property rights. However, contracts are the mechanism that we use to transfer any ownership or other rights related to the intellectual property.
There are some common types of contracts that are used with intellectual property rights. These include assignments, licenses, and non-disclosure agreements, among many others.
An assignment is the transfer of ALL the rights that someone holds the intellectual property to another person. The first party grants every single right they have to the other person. They no longer have any rights to that intellectual property.
Licenses are similar to assignments because they grant rights from one person to another. However, licenses grant some, but NOT ALL, of the rights. For example, a license might be the grant to use intellectual property rights in a certain location or for a certain time or under certain circumstances.
For example, you might give someone the right to use your IP as long as they make royalty payments to you. If they stop making the payments, the don't have the right to continue using your IP.
Non-disclosure agreements, or NDAs, are sometimes referred to as confidentiality agreements. These are agreements between people or companies to obligate the recipient of confidential information to keep that information secret. This means the recipient agrees they'll keep the secrets of the other person protected and not share them with others.
NDAs are critical to trade secrets which have to be keep secret with formal processes. NDAs are also very helpful when someone is in the process of obtaining rights under patents (especially patents), trademarks, or copyrights before those rights have been formally obtained.
Contracts dealing with intellectual property are subject to the same rules as any other contracts. They cannot be illegal. They cannot be coercive. They cannot be fraudulent. And they cannot be between parties or with a party who is incapacitated or mentally unable to enter into a contract.
Contracts allow parties to enforce obligations against other people either through arbitration or litigation, if necessary. Most contracts are governed by state laws, although in some cases contractual obligations can also be enforced in federal courts.
The power of contractual obligations should also be noted for several aspects of business negotiations.
Contracts are formed through the offer and acceptance process with some type of consideration, or exchange of value, between the parties. They can last, in many cases, as long as the parties agree, but can be subject to certain limitations depending on which jurisdiction or which area of law governs the contracts. This can be particularly difficult when you have parties in different countries negotiating and using the laws of one country instead of the other.
You should now have a basic understanding of various types of intellectual property law, what they protect, what they don't protect, and how long each type of IP protection lasts.
A book chapter on copyrights, from Utah Business Law for Entrepreneurs & Managers (2016, The Utah Bar Association, Business Law Section)
Utility and design patent applications should be considered together in an IP portfolio, but there are several pitfalls if you don't use them correctly.