What is the difference between patent and trademark? A trademark is a symbol, phrase, design, and/or word that identifies and distinguishes the source of the goods of one party from that of another. A patent is a defined duration property right granted by the United States Patent and Trademark Office that relates to an invention. Patentable materials include chemical compositions, industrial processes, manufactured articles, and machines.

What Is Intellectual Property?

An idea is only a thought until it's altered into something that has worth. Once converted, the design, product, or artistic work becomes intellectual property (IP). IP is codified as industrial property, which includes:

IP is a legal term that refers to all creations of a person's mind that are recognized for exclusivity. Under IP law, the owners of the creations are granted specific rights to an assortment of intangible assets:

  • Inventions and discoveries.
  • Artistic, literary, and musical works.
  • Designs, symbols, phrases, and words.

The most common types of IP include trade secrets, patents, copyrights, and trademarks.

What Is the Difference Between a Trademark and a Patent?

A patent is a right granted to an inventor by the federal government that allows the inventor to exclude other parties from using, selling, or making an invention for a specific period of time. The patent system was created to encourage inventions that are useful and unique to society. Congress was originally given the power to grant patents in the Constitution, and federal statutes and rules govern patents. Inventions are usually created as a solution to technological problems and can be a process or product. Similar to other property rights, patents may be:

  • Given away.
  • Transferred.
  • Assigned.
  • Mortgaged.
  • Licensed.
  • Sold.
  • Abandoned.

Any chemical, process, design, or machine can be patented. For example, the Apple iPhone design has been patented. Patents do not provide the inventor with a right to sell or make an invention. Instead, patents provide the owner with the right to exclude other parties from using, making, selling, importing, or offering the patented invention for sale.

What Is a Trademark?

A trademark is a visual symbol. It indicates a source of a service or a product that is distinguishable from other similar services or goods, examples include:

  • Numerals.
  • Combinations of colors.
  • Slogans.
  • Logos.
  • Labels.
  • Names.
  • Signatures.
  • Any of the above elements combined.

Basically, a trademark is a distinguishing symbol or sign which acknowledges certain services or goods. Trademarks may be used to safeguard:

  • Providers of services or products.
  • Features of services or products.
  • The service or product itself.

Trademarks provide protection to the owner of the mark by granting them with exclusivity. The owner has exclusive rights to use the mark or allow other parties to use it for a fee.

What Is a Patent?

A patent refers to the exclusive rights granted by the USPTO to the owner for a useful and new invention which involves an innovative action. A patent is valid for a predetermined period. It may either relate to a process or product. The main advantage to registering a patent is that it will allow the owner/inventor to have exclusive rights to the patented invention.

In exchange for complete public disclosure, the owner of the patent receives the right to prevent other parties from using, selling, producing, or importing a specific service or product. The inventor may authorize the patentee (agent) to use the invention even though they themselves have proprietary rights over the patented invention. There is no obligation for an inventor to register a patent. In other words, if there is no real use for the invention it may not be worth the cost to protect it. Inventing something patentable will usually require the idea to be:

  • Industrially applicable.
  • Nonobvious.
  • Novel.

What Is a Copyright?

The creators of copyrighted material have the exclusive rights to:

  • Create derivative works from the original.
  • Record the creative work.
  • Display the creative work.
  • Perform the creative work.
  • Publish the creative work.
  • Reproduce the creative work.

Copyright provides the authors of the original works of authorship with a form of protection for:

  • Published and unpublished works.
  • Literary works.
  • Dramatic works.
  • Musical works.
  • Artistic works.
  • Certain other intellectual works.

If you need help determining the difference between a patent and a trademark, 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.