I often get asked what the difference is between copyright, trademark and patent. Many people use the terms interchangeably and/or incorrectly. In an attempt to set the record straight, here is the quick and dirty on intellectual property (IP).
According to the World Intellectual Property Organization, intellectual property is defined as “creations of the mind such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.” Copyright, trademarks and patents are the laws that protect IP and they all “enable people to earn recognition or financial benefit from what they invent or create.” Each of these work in different ways and protect different things but there is one common thread – they are the lifeblood of any small business or career in the creative sector.
In the U.S., copyright is the body of law that protects original works of authorship fixed in a tangible medium. Copyright protection is available for: musical works, literary works, visual arts, live performances, photographs, movies, and even software. Keep in mind though – copyright does NOT protect ideas, but rather the expression of those ideas. For example, if you create a song, it isn’t eligible for copyright protection until you put that song onto a cd or into a digital format.
Copyright only protects original works – i.e. works that you personally created using your own ideas, or works that you had done on your behalf (known as a “work for hire”). Additionally, copyrights expire after a certain number of years. For works that are created by an individual, copyright protection lasts for the life of the individual author, plus an additional 70 years. For works that you have commissioned (aka that you have done on your behalf), copyright protection lasts for 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.
Copyright is particularly relevant in the music, film, arts and literary industries. Contrary to popular belief, fashion designs (at least in the United States) are not eligible for copyright protection.
A trademark is a word, phrase, symbol and/or design that identifies and distinguishes the source of the goods of one party from those of others. Essentially, trademark helps consumers distinguish one brand from another. Trademarks come in two varieties – although everyone uses “trademark” generally to describe both – “trademark” and “service mark”. The term trademark refers to goods specifically (i.e., McDonalds, Apple, Samsung). The term service mark refers to a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods (i.e., H&R Block, Verizon, Bernier Legal).
Brand names, slogans and logos are all examples of trademarks. The legal name under which you do business – for example the name that you used to register your business in your particular state, is not necessarily your brand name, and therefore not the name that you would trademark.
Unlike copyrights, trademarks do not expire after a certain number of years. According to the United States Patent and Trademark Office (USPTO, trademark rights come from actual use – meaning that as long as you are actively using the mark in commerce and filing the relevant paperwork with the USPTO, your trademark can last forever.
As soon as you start using your mark in commerce, you obtain what’s called “common law” trademark rights. This means that although you don’t necessarily need to register your trademark with the USPTO, doing so carries many advantages.
Trademark is relevant in any industry and is a necessary weapon in any small business owner’s arsenal.
Patents allow inventors to have a limited duration property right for their invention. In exchange for this property right, the inventor must publicly disclose the invention. Patents come in two varieties – design patents and utility patents.
A design patent pertains to the ornamental design of a functional item – basically a design patent protects the way an item looks. Examples include: ornamental designs of jewelry, furniture, beverage containers and computer icons. Design patents have a duration of 15 years from issuance if your patent application was filed on or after May 13, 2015. If your application was filed before then, you have 14 years from issuance.
Utility patents pertain to the creation of a new or improved item and useful product, process or machine. Utility patents have a duration of 20 years from the date on which the application for the patent was filed in the U.S.
The whole point of patents is that it prohibits other individuals or companies from making, using or selling the invention without authorization.
Patents are particularly relevant to business owners who invent new products or improve the functionality or look of existing products.
Now that you know…
As you can see, IP generally covers many things. Knowing what and how is the key to successfully protecting and leveraging your creative endeavors.