COPYRIGHT vs. TRADEMARK vs. PATENT
Some people confuse patents, copyrights, and trademarks. Although there may be some similarities among these kinds of intellectual property protection, they are different and serve different purposes.
Trademark, Patent, or Copyright?
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. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. The term “trademark” is often used to refer to both trademarks and service marks.
Must all marks be registered? No, but federal registration has several advantages, including a notice to the public of the registrant’s claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration.
A patent is a limited duration property right relating to an invention, granted by the United States Patent and Trademark Office in exchange for public disclosure of the invention.
A copyright protects works of authorship, such as writings, music, and works of art that have been tangibly expressed.
Copyright is a form of protection provided to the authors of “original works of authorship”, including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.
The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.
Copyrights protect the expression of ideas. Artistic works are generally considered to be expressions of ideas – books, paintings, songs, movies, and computer programs are examples. Copyright will not protect the process through which a particular work was created or the use of information within it (instructions, etc.).
Cookbooks are often used to illustrate the difference between the expression of an idea and the idea itself. Cookbooks cannot be reproduced without permission because they are an expression of ideas (the recipes). However, people can still follow the recipes in the cookbook because they are replicating the ideas contained in the literary work. If the recipes were protected by a patent, users would need permission to follow them, since patents protect particular ideas from being used without authorization.
Copyright contains moral rights and economic rights. Economic rights include the right to copy or publish a work or any substantial part of it. Moral rights include the right to the integrity of the work and the right to be listed as its author (though this is subject to certain limitations). The author does not lose these rights when they allow their work to be copied or published. Moral rights can be waived, but they cannot be assigned to others.
Intellectual Property Protection
Intellectual property includes works, processes, symbols and designs that were created or are owned by a company. This can include logos and slogans, and written documents or artistic works. To enforce the ownership and right to use intellectual property, the business owner must register it at the United States Patent and Trademark Office or the United States Copyright Office, depending on the type of property a business wants to protect.
Copyright Protection
According to the United States Copyright Office, copyright protects original works including “literary, dramatic, musical, artistic, and certain other intellectual works.” For example, a business can copyright its books, reports, audio or video materials.Work is automatically copyrighted at the time of creation; however, registration is required if a business wants to sue over the use of the material by another party. Copyright registration requires the filing of a form, paying a fee, and sending a copy of the work to the United States Copyright Office.
Registering for Copyright
Copyright registration involves filing the proper form obtained from the U.S. Copyright Office and submitting it with the required fee and work sample. The Copyright Office does not compare new works with those previously registered by others, and only serves to provide dated evidence in cases of infringement or misuse. When infringement lawsuits are filed, the courts make the final ruling by comparing the works in question. When misuse suits arise, the court relies on copyright registration dates to prove ownership.
What is a Trademark or Servicemark?
A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms “trademark” and “mark” are commonly used to refer to both trademarks and servicemarks.
Trademark Protection
The United States Patent and Trademark Office indicates that a trademark protects “words, names, symbols, sounds or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods.” This means that a company can register a trademark for its business name, slogans, logos and other items that essentially brand the product or company. Registering a trademark first requires doing a trademark search to ensure it’s not already in use. Because of the legal ramifications, most trademark experts recommend using an attorney to assist in trademark registration.
Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office.
The Difference Between Copyright and Trademark
While both offer intellectual property protection, they protect different types of assets. Copyright is geared toward literary and artistic works, such as books and videos. A trademark protects items that help define a company brand, such as its logo. For example, Acme Publishing Company can trademark its name and logo, but would copyright books and videos that it created.
Some additional differences between a copyright and a trademark are as follows:
1. The purpose of a copyright is to protect works of authorship as fixed in a tangible form of expression. Thus, copyright covers: a) works of art (2 or 3 dimensional), b) photos, pictures, graphic designs, drawings and other forms of images; c) songs, music and sound recordings of all kinds; d) books, manuscripts, publications and other written works; and e) plays, movies, shows, and other performance arts.
2. The purpose of a trademark is to protect words, phrases and logos used in federally regulated commerce to identify the source of goods and/or services.
3. There may be occasions when both copyright and trademark protection are desired with respect to the same business endeavor. For example, a marketing campaign for a new product may introduce a new slogan for use with the product, which also appears in advertisements for the product. However, copyright and trademark protection will cover different things. The advertisement’s text and graphics, as published in a particular vehicle, will be covered by copyright – but this will not protect the slogan as such. The slogan may be protected by trademark law, but this will not cover the rest of the advertisement. If you want both forms of protection, you will have to perform both types of registration.
4. If you are interested in protecting a title, slogan, or other short word phrase, generally you want a trademark. Copyright law does not protect a bare phrase, slogan, or trade name.
5. Whether an image should be protected by trademark or copyright law depends on whether its use is intended to identify the source of goods or services. If an image is used temporarily in an ad campaign, it generally is not the type of thing intended to be protected as a logo.
6. The registration processes of copyright and trademark are entirely different. For copyright, the filing fee is small, the time to obtain registration is relatively short, and examination by the Copyright Office is limited to ensuring that the registration application is properly completed and suitable copies are attached. For trademark, the filing fee is more substantial, the time to obtain registration is much longer, and examination by the Trademark Office includes a substantive review of potentially conflicting marks which are found to be confusingly similar. While copyright registration is primarily an administrative process, trademark registration is very much an adversarial process.
7. Copyright law provides for compulsory licensing and royalty payments – there is no analogous concept in trademark law. Plus, the tests and definition of infringement are considerably different under copyright law and trademark law.
What is a Patent?
A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions.
The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.
A patent is a right, granted by the government, to exclude others from making, using, or selling your invention. Patents protect inventions such as new processes, machines, or chemicals. The central idea is that patents protect ideas, not just expressions of them. The main effect of patents is to give their holders the right to challenge any use of the invention by a third party. He thereby gave a temporary monopoly of exploitation which can be understood as a financial incentive for inventive industrial activities.
Registering Patents
Patents must be registered. If you invent something and fail to register it, another person who independently invents or discovers your invention can patent it. There are 3 general requirements for patentability: (1) the invention must be novel, (2) it must be useful, and (3) it must show ingenuity (i.e. not be obvious). Patents expire for 20 years after the filing date, at which point they must be re-registered.
Applying for Patent
Patent applications can be complex and costly, and patent attorneys are often consulted to assist inventors. A patent search is perhaps the most labor-intensive process and involves searching through past patents to ensure that the property has not already been patented. Abstract definitions, detailed drawings, inventor information, inventor claims and specifications are required, and it can take up to several years for a patent to be issued.
The Difference Between Copyright and Patent
Patents refer to an invention, whereas copyrights refer to the expression of an idea, such as an artistic work. They are governed by different rules, so it is important to know which is applicable to your works.