Trademarks, Copyrights, and Patents

Some people confuse patents, copyrights, and trademarks. Although there may be some similarities among these kinds of intellectual property protection, they are different and serve different purposes. The simple explanation is:

– Patents are for inventions.
– Copyrights are for authors such as music, books and movies.
– Trademarks are for brand names.

What Is a Patent?

A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the U.S., U.S. territories, and U.S. possessions.

The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.

The U.S. issues three types of patents: (1) utility patents, (2) plant patents and (3) design patents. A utility patent covers any new and useful machine, manufactures and compositions of matter. Utility patents are the most common and cover the broadest scope of inventions.  On the other hand, a plant patent covers asexually reproduced plants, which includes newly found seedlings, hybrids, cultivated spores and mutants.  Finally, a design patent covers an ornamental design for an article of manufacture.  A design patent covers only the appearance of an article, not the functionality of it.

What Is a Trademark or Servicemark?

A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others.  A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product.  A good example of a servicemark is the McDonald’s “Golden Arches”.  The terms “trademark” and “mark” are commonly used to refer to both trademarks and servicemarks.
Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark.  Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office.
One final thought for trademarks: it is possible to have Federal protection rights for an unregistered trademark that is used in commerce.  Under Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)), a owner of an unregistered trademark may file a civil cause of action for infringement when:  (1) the plaintiff/owner is the senior user (first user) of the trademark and has attained market penetration in a particular area; (2) the trademark is inherently distinctive; and (3) the defendant’s use of the trademark would likely create confusion in the marketplace or public.  Caution: this does not mean you should not register your trademark.  Filing a lawsuit and proving the elements for trademark infringement is difficult and expensive. Bottom line: play it safe, do it right and register your trademark.

What Is a Copyright?

Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished.  Copyright comes from the U.S. Constitution, which states: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  In addition, the 1976 Copyright Act generally gives the owner of a copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.  The following are some important amendments to the Act:

1.    The Computer Software Act of 1980, which applies protection to computer software.
2.    The Digital Millennium Act of 1998, which attempted to reconcile copyright and the Internet.

The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.