Key Takeaways

  • Trademarks protect brand identifiers such as names and logos, while patents protect new inventions or processes.
  • Trademarks can last indefinitely if maintained; patents offer limited-time exclusive rights.
  • Each form of intellectual property (IP) serves a distinct legal purpose and offers unique protections.
  • Businesses should determine which type(s) of IP protection apply to their assets to prevent infringement and loss of value.
  • The USPTO is the central authority for filing trademarks and patents in the U.S.

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.

What Do Trademarks and Patents Protect?

Trademarks and patents are legal tools used to protect different forms of intellectual property.

  • Trademarks protect names, logos, symbols, slogans, and other identifiers that distinguish a business’s goods or services. They ensure consumers can identify the source of a product or service.
  • Patents protect inventions—new processes, machines, articles of manufacture, or compositions of matter. A patent prevents others from making, using, or selling the invention without permission.

Choosing the right form of protection depends on what you're trying to safeguard. A logo would be protected by a trademark, while a new piece of machinery would require a patent.

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.

Trademark Classes and International Protection

When registering a trademark, applicants must select one or more trademark classes, which categorize the types of goods or services the mark will cover. There are 45 international classes—34 for goods and 11 for services.

Additionally, U.S. trademark registration does not automatically protect your brand internationally. To secure international rights, you can:

  • Apply for protection in each country individually.
  • Use the Madrid Protocol, an international treaty that allows trademark owners to seek registration in multiple countries with a single application filed through the USPTO.

Common Trademark Mistakes to Avoid

When applying for a trademark, business owners often make these common mistakes:

  • Failing to conduct a proper trademark search to identify conflicting marks.
  • Using descriptive or generic terms that cannot be registered.
  • Not monitoring or enforcing trademark rights after registration.
  • Believing registration provides international protection without additional filings.

Avoiding these pitfalls ensures stronger protection and lowers the risk of opposition or cancellation.

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.

Costs and Timeline of Patent Applications

Patent costs and timelines vary depending on the type and complexity of the invention:

  • Provisional patent applications typically cost $65–$300 in filing fees for small entities and provide 12 months of temporary protection.
  • Non-provisional utility patents may cost several thousand dollars when including attorney fees, with a typical approval time of 18 to 36 months.
  • Design patents are generally less expensive and faster to obtain.

Additional costs include maintenance fees after the patent is granted, due at 3.5, 7.5, and 11.5 years to keep the patent active.

What Can and Cannot Be Patented

The U.S. Patent and Trademark Office (USPTO) only grants patents for:

  • New, useful, and non-obvious inventions.
  • Compositions of matter, manufactured items, processes, or improvements to any of those.

However, the following cannot be patented:

  • Abstract ideas or mathematical formulas.
  • Laws of nature or natural phenomena.
  • Artistic works (these are protected by copyright, not patent law).
  • Inventions already disclosed or publicly used before filing (lack of novelty).

To increase your chance of success, it’s critical to perform a prior art search before filing.

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.

When to Use Multiple Forms of IP Protection

In some cases, a single product or idea may be protected by more than one form of intellectual property:

  • A smartphone may have:
    • A utility patent for its internal technology.
    • A design patent for its physical appearance.
    • A trademark for its brand name and logo.
    • A copyright for its software code and user interface graphics.

Using multiple protections ensures broader security for your business assets and can deter infringement from multiple angles.

Frequently Asked Questions

  1. What’s the difference between trademarks and patents?
    Trademarks protect brand identifiers like logos or names; patents protect new inventions or processes.
  2. Can I protect the same product with both a trademark and a patent?
    Yes. For example, you can trademark your brand name while also patenting the product's functionality.
  3. How long does it take to get a patent?
    Patent approval typically takes 1.5 to 3 years, depending on complexity and backlog at the USPTO.
  4. Do trademarks last forever?
    Trademarks can last indefinitely, but they must be renewed regularly and remain in active use.
  5. Can I get trademark protection in other countries?
    Yes, but you must file separately in each country or use systems like the Madrid Protocol for broader protection.

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, Menlo Ventures, and Airbnb.