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Trademarks, patents and copyrights are three of the basic types of intellectual property (“IP”). In the US, each is legally protected by statutory and regulatory registration/application regimes. In addition, all three types of IP are explicitly protected by international law pursuant to many international treaties and agreements. A fourth major type of IP involves trade secrets. Trade secrets are protected by various statutes, but there is no registration regime for trade secrets. Here is a quick comparison of trademarks, patents, and copyrights.
What is Legally Protected?
Trademark laws affords legal protection for designs, marks, logos, words, phrases, or combinations thereof that are used in association with the sale of goods or services. Trademarks are used to identify a unique commercial source of those goods and services. Patent law affords legal protection for new inventions like machines, devices, and chemical compositions. Patents also protect novel designs and plants. Copyright law affords legal protection for original artistic works placed in tangible mediums like literature, music, movies, and website content.
In each case, the legal protection afforded allows an owner/holder to prevent others from using their IP. That is, a trademark, patent or copyright owner can prevent others from using their trademark, patent, or copyright. Most often, IP rights are defended by bringing infringement litigation in federal courts.
Where to Register?
Trademarks are registered by the US Patent & Trademark Office (“USPTO”) and copyrights are registered by the US Copyright Office. Patents are obtained from the USPTO.
Why Register or Apply for a Patent?
With respect to patents, there are no legal protections for an invention unless a patent has been issued. With respect to trademarks and copyrights, enhanced legal protections are available if the IP is registered. As examples, registering a trademark gives its owner nationwide priority and registering a copyright is a prerequisite to bringing federal copyright infringement litigation.
How Long Does the Legal Protection Last?
The legal protections afforded by trademarks remain in place indefinitely as long as the trademark is being used in interstate commerce. Legal protections for patents have a term from 14 to 20 years depending on the type of patent. The length of term for copyright protection varies, but for original works of authorship created since 1978 or so, copyright legal protection lasts for the life of the author plus an additional 70 years.
International Protection
Trademarks, patents, and copyrights are protected internationally by operation of various international treaties and agreements. Essentially, the international treaties and agreements obligate signatories to recognize the IP rights of the citizens of other nations in exchange for having the IP rights of their citizens internationally recognized. There are many trademark treaties, but probably the most famous is the Madrid Protocols. There are also many international treaties related to patents. Probably the two most important are the Paris Convention and the Patent Cooperation Treaty. The main international copyright treaty is called the Berne Convention. For more information, contact Revision Legal at 231-714-0100. Our litigation team has deep experience in trademark law,copyright law, and patent law.
A trademark can be almost anything that functions to identify a single commercial source for goods or services in the minds of consumers. This includes words, logos, slogans, colors, sounds, and even product packaging (trade dress). Not all marks qualify for federal registration. To be registrable on the USPTO’s Principal Register, a mark must be distinctive — it must be capable of identifying the applicant as the source of its goods or services and distinguishing them from goods or services of others. Generic terms, primarily descriptive terms, and deceptive marks are barred from registration.
Federal trademark registration provides significant legal advantages, including constructive notice of the owner’s claim of ownership nationwide, the right to use the ® symbol, the ability to record the registration with US Customs and Border Protection to prevent importation of infringing goods, and access to federal court jurisdiction and enhanced remedies including treble damages and attorney’s fees in cases of willful infringement. Registered trademark owners must maintain their registrations by filing Section 8 declarations of continued use between the fifth and sixth year after registration and at ten-year renewal intervals thereafter.
The US patent system recognizes three main types of patents, each protecting a different category of innovation:
To obtain a utility patent, an invention must be novel (not previously disclosed), nonobvious (not an obvious variation of what was already known), and useful (capable of producing a defined result). The patent application process typically takes 18 months to 3 years from filing to issuance, depending on the technology area and the complexity of the prosecution.
Copyright protects original works of authorship fixed in a tangible medium of expression. The protected categories include literary works, musical works, dramatic works, choreographic works, pictorial and sculptural works, audiovisual works, sound recordings, and architectural works. Copyright protection arises automatically upon creation and fixation — no registration is required for the copyright to exist. However, registration with the US Copyright Office is required before an infringement lawsuit can be filed in federal court, and timely registration (before infringement or within three months of publication) allows recovery of statutory damages and attorney’s fees.
Copyright does not protect ideas, facts, systems, methods of operation, or the style or technique embodied in a work — only the specific expression of those ideas in the author’s work. This is sometimes called the idea-expression dichotomy. For example, copyright can protect the specific words of a novel but not the plot concept. Copyright can protect a software program’s specific code but not the underlying algorithm or functionality.
Unlike trademarks, patents, and copyrights, trade secrets do not require registration and have potentially unlimited duration — as long as the information remains secret and retains commercial value from its secrecy, it qualifies for legal protection. The federal Defend Trade Secrets Act of 2016 and most states’ versions of the Uniform Trade Secrets Act protect trade secrets from misappropriation.
Trade secret protection and patent protection present a fundamental strategic choice for inventors and businesses. A patent requires full public disclosure of the invention in exchange for a limited-term exclusive right to exploit it. Trade secret protection requires no disclosure but offers no protection against independent development or reverse engineering. The right choice depends on the nature of the innovation, the industry, and the business’s competitive strategy. For inventions that can be protected from reverse engineering indefinitely — like the formula for a soft drink — trade secret protection may be preferable. For inventions that will be incorporated into products that can be reverse-engineered, a patent provides more robust protection.
Understanding how these four categories of IP interact and overlap — and when to use each — is essential for building a comprehensive IP strategy. Contact the IP lawyers at Revision Legal at 231-714-0100 for guidance on protecting your trademarks, patents, copyrights, and trade secrets.
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