Patent, Trademark or Copyright?: Get Your IP Terminology Straight
The terms “patent,” “trademark,” and “copyright” are often used interchangeably in everyday conversation. Even media reports about intellectual property sometimes get the terms mixed up. But, to IP practitioners, they represent very different concepts. This can lead to some initial confusion when business owners contact an IP firm to discuss protecting their intangible assets. If you want to go in with some handle on the jargon, not to worry. Knowmad Law is here with some simple pointers.
Attorneys must have a science background and pass a special bar exam to file patent applications. In many firms patent prosecution is an entirely separate practice group from trademark, copyright and trade secret matters (sometimes somewhat-condescendingly referred to as “soft IP”). When people talk about “patents,” they’re usually talking about utility patents, but, confusingly, U.S. law also recognizes design patents and plant patents, which are technically subcategories of patent but may be better thought of as separate forms of IP.
What it protects: new and useful inventions, including machines and processes
Why it exists: to incentivize innovation
How you get it: application to USPTO
What it gives you: the exclusive right to sell, make or use an invention for 20 years
Unlike patents and trademarks, there isn’t really a discreet unit of intellectual property known as “a copyright” (though the term is often used as shorthand for “copyright registration”). Instead, we find it preferable to think of “copyright” as an uncountable noun like “knowledge” and to discuss our clients’ copyright portfolios in terms of works subject to copyright.
What it protects: works of creative expression, including any original text, graphic, audio or video content
Why it exists: to incentivize creative activity
How you get it: creating something (registration with Library of Congress grants additional rights)
What it gives you: the exclusive right to reproduce, distribute or display a work for 70 years after your death (or 95 years for institutional authors)
Trademark law is rooted in consumer protection and market regulation. This is an important distinction from patents and copyright, which are essentially government bounties to reward inventors and artists. Whereas the Patent Act and Copyright Act are based upon a specific provision of the U.S. Constitution directed to encouraging “science and the useful arts,” Congress relied on the regular old Commerce Clause to pass the Trademark Act.
What it protects: indications of origin for goods and services, including words and symbols
Why it exists: to prevent consumer confusion and deceptive business practices
How you get it: using a mark to sell or market particular goods or services (registration with USPTO grants additional rights)
What it gives you: the right to prevent others from using similar marks to sell or market related goods or services
Rounding out the “big four” of intellectual property are trade secrets. Though less often discussed than patents, trademarks and copyright, trade secrets are often the only way to protect a business’s most valuable assets.
What it protects: valuable and confidential information
Why it exists: to prevent unfair business practices
How you get it: keeping the information secret
What it gives you: a claim against anyone who obtains or spreads the information by improper means
There’s a certain amount of overlap between these spheres of protection. For example, a company might use a trademark to market its patented technology. Or a computer process might be the subject of a patent, while the specific code used to implement the process is covered by copyright. In both cases, these tangential rights would persist after the patent expires.