Trademarks and Patents

While trademarks and patents are different from one another, they both fall under the intellectual property realm. Intellectual property refers to ideas, concept, and inventions that are both unique and valuable. If a person or business owns the rights to that invention, then that means that the person or business can manufacture or license the invention.

Inventions with such rights can patent, copyright, or trademark the invention. But, keep in mind that not all inventions or ideas can be patented or trademarked.

  • The design of a car can be patented, but not the idea itself.
  • A story or manuscript is copyrighted, but not the idea itself.
  • A single feature of an invention can be patented, as can the entire invention itself.

Laws regarding intellectual property rights vary in every country, but the principle remains the same. Once you have a patent, copyright, or trademark, you have the legal rights to that invention. No one else can infringe upon those benefits. Furthermore, if you have protection in one country, that protection is recognized internationally, under the World Intellectual Property Organization treaty.

Benefits of a Trademark

  • It enhances your right by providing evidence and public notice of ownership to all others. If someone else uses your trademark, then they have infringed upon your legal rights as the owner of the trademark.
  • The trademark itself provides national exclusive rights to the mark, allowing you as the trademark owner to sue someone else.
  • A registered trademark can use the ® symbol.
  • Trademarks provide lifetime protection, but you’ll need to renew the trademark every 10 years.
  • The trademark can be renewed so long as the mark is continuing to be used.

How to Register a Trademark

Once you begin using your name or logo for your business, you have common law protection and should use the ™ symbol. Be mindful that common law protection is limited. In order to have additional protection, you’ll want to register the trademark, which can be done with the United States Patent and Trademark Office (USPTO). It will cost approximately $375/class for paper filings and $325/class for filing online. Once the registration is approved, you can begin using the ® symbol.

Types of Patents

  • Utility patents. Such patents are granted for processes, machinery, composition of matter, and other inventions that improve a previous invention. The invention itself must be ‘new, non-obvious, and useful.’
  • Design patents. These types of patents are granted for new ‘ornamental’ designs of a manufactured product. The appearance, or design, of the product receives patent protection.
  • Plant patents. Such patents protect asexually reproducible plants that are ‘distinct and new.’

>Patent Protection Timeframe

Having a patent provides you with exclusive protection over your invention, but remember that that right lasts for a certain period of time.

  • A non-provisional utility patent protects you for 20 years, but it cannot be renewed after that.
  • A provisional patent lasts for one year, at which point you must determine if you will file a non-provisional patent to obtain full protection. More specifically, the provisional patent application simply buys you a year’s worth of time to expand upon and improve your invention. During this one year time period, you can indicate to the public that your invention is ‘patent pending’ and can receive full protection once you’ve filed a non-provisional patent application.
  • A design patent lasts for a period of 14 years.
  • Some inventions can fall into more than one patent category. For example, certain software inventions can be protected by a design and utility patent.

How to Register a Patent

If you have an invention that you want to patent, you’ll need to visit the USPTO website, which can be filed online or via paper filing. The costs associated with the patent application vary depending on the type of protection being sought.

Patent vs. Trademark vs. Copyright

  • Patents prevent other people and businesses from manufacturing, using, and/or selling your invention.
  • Trademarks protect your words, symbols, phrases, and logos that you use to identify your goods or services, i.e., packaging on products, name of products, business logos, etc.
  • The overlap of patents, trademarks, and copyrights generally doesn’t occur. However, if a design patent protects the design of a product, then that product may also have a trademark or copyright on its name.
  • In certain cases, you may be able to obtain a copyright and patent.
  • Copyright owners also have an exclusive right to the work, including a right to duplicate their own work, display the work in public, and perform the work publicly.

If you need help with registering your trademark or patent, 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.