Patents, Trademarks, Copyrights, and Trade Secrets

Patents, trademarks, copyrights, and trade secrets are all forms of intellectual property, but they each have a specific purpose and important limits to consider. Understanding the difference between these resources can help you sufficiently protect your intellectual property. Learn more about intellectual property and the unique protections that patents, trademarks, copyrights, and trade secrets provide.

What Is Intellectual Property?

Intellectual property comprises patents, copyrights, trademarks, and trade secrets. A person or business can claim exclusive rights to the products and processes that these protections safeguard. However, understanding the laws related to each of these areas can be challenging.

What Is the Difference Between a Patent, a Trademark, and a Copyright?

A person may be able to secure patent, copyright, and trademark protection for one product or for multiple ideas expressed in a single product or process. With computer software, for example, the copyright protects the code, and the patent protects the function. If a company further develops the software, trademark protection for the brand will also likely apply.

What Are Patents?

Patents cover the specific process or product used to express an idea. Patents can be issued for a new method, a unique modification to an existing design, and entirely new products. Though a patent is essential for many products and processes, it only gives the holder exclusive rights to prevent others from making, using, or selling the patented idea.

A patent must meet strict requirements before the Patent Office will approve it. For example, the product or process must be novel and display originality. It must also not be something that already exists in the current body of public knowledge. This body of knowledge is known as “prior art.”

What Is a Trademark?

A trademark protects the word, name, symbol, or device used with a commercial good. A trademark:

  • Indicates which company produced a certain good

  • Distinguishes a product from others

  • Identifies the source of a service (known as a “servicemark”)

  • Informs the consumer where a product comes from

Though a trademark offers protections for a business, it also gives consumers the confidence to purchase a product based on the company's reputation. But although a trademark protects the brand associated with a product, it doesn't keep others from copying the product itself and using a different brand name to sell it.

What Is a Copyright?

A copyright protects how an idea is expressed but not the idea itself. It doesn't, for example, keep another person or business from producing a product that has the same purpose.

Instead, a copyright protects the original author's rights. They're often seen in areas such as literature, drama, music, painting, and other intellectual works. An author doesn't have to publish a work in order to receive copyright protections for it.

A copyright exclusively allows the holder to:

  • reproduce the work

  • perform the work publicly

  • display the work publicly

  • profit from the work

Copyrights are in effect for up to 100 years following the author's death. However, this varies depending on the country of origin. In the United States, you can register a copyright with the U.S. Copyright Office. Once the copyright is registered, the rights holder can seek statutory damages if someone infringes on the protected work.

What Are Trade Secrets?

Trade secrets are similar to copyrights, but they're designed specifically to protect secrets that give a company a competitive advantage. This includes things such as client lists, secret formulas and recipes, and market strategies. A formal filing isn't required in order to register a trade secret; the company just needs to show that it's using the secret. A company can do so by issuing NDAs (non-disclosure agreements) to its employees or establishing levels of security clearance.

In the U.S., trade secret laws aren't like those for patents, trademarks, and copyrights. Because the information included in a patent becomes public knowledge once the patent application is filed, it's often best for a company not to file a patent for an idea in order to avoid making a trade secret public knowledge.

Trade secrets are protected for much longer than patents are. Patents expire within a year, but trade secrets stay in effect for generations.

If you need help with patents, trademarks, copyrights, and trade secrets, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.