Sometimes it’s back to basics. This time, the simple difference between trademarks, copyrights, and patents. The U.S. Patent & Trademark Office (“USPTO”) provides guidance.
A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of one party’s goods. A service mark is the same but for services, and can still be referred to as a trademark. Examples can include brand names, company names, logos, tag lines, slogans, and the like. Trademarks do not expire as long as they are used in commerce. A person/entity may register a trademark with the USPTO (and/or individual states) if it uses or intends to use the trademark, but registration is not required because there can be common law trademark rights in brands, logos, etc. Use of the ® symbol signals registration; use of the ™ symbol signals common law rights. A registered trademark enjoys a presumption of validity that a common law trademark generally does not enjoy. A person/entity may sue another person/entity for trademark infringement whether or not it has already applied for the trademark or had it registered. The USPTO’s brochure on Basic Facts About Trademarks provides helpful information to those wanting additional information on how to protect their trademarks.
A copyright is an original work of authorship and includes literary, dramatic, musical, and artistic works. Obvious examples include songs, writings, movies; less obvious examples include computer software and architecture. Copyrights expire 70 years after death for works created by an individual, but they expire under a different timeframe (the shorter of 95 years from the publication date or 120 years from the creation date) for anonymous works or works made for hire — e.g. a work created by an employee for an employer. A person/entity may register a copyright with the U.S. Copyright Office and may use the © symbol to indicate copyright protection. Although a person/entity obtains copyright protection immediately upon the creation (and fixing in a tangible form) of a copyrightable work, that person/entity may not sue another person/entity for copyright infringement until after it has applied for and received a registration for the copyright from the U.S. Copyright Office. (This was previously a disputed issue that the U.S. Supreme Court decided last year.) The U.S. Copyright Office’s website, particularly its FAQs page, provides helpful information to those wanting additional information on how to protect their copyrights.
A patent protects new and non-obvious inventions and discoveries in the form of a limited duration exclusionary property right. Examples include processes, machines, articles of manufacture, composition of matter, or any improvement of the foregoing (utility patents) as well as ornamental designs of an article of manufacture (design patent) and asexually reproduced plants varieties (plant patent). It does not include laws of nature, physical phenomena, or abstract ideas. It also does not include literary, dramatic, musical, and artistic works, which are instead subject to copyright. Depending upon the type, a patent is valid for 15 years from issuance (design patents) or 20 years from application date (utility and plant patents). A person/entity may apply for a patent with the USPTO and may sue another person/entity for patent infringement once that patent has issued. The USPTO’s website, particularly its FAQs page for patents, provides helpful information to those wanting additional information on patents.