Trademark vs Patent


Trademark vs Patent

The primary difference between a trademark vs patent is that a patent is an invention like a light bulb, whereas a trademark designates the source of goods or services like the words Microsoft, Google and Apple.

Copyright vs Trademark vs Patent

The three primary forms of intellectual property are trademarks, copyrights, and patents, each of which is explained below.

What is a Copyright?

A copyright is an original work of authorship such as text, graphics for a website, and a photograph.  Copyright law provides an exclusive right to those who produce creative works.  You cannot copyright an idea. You can secure protection, though, over the original expression of that idea. Copyrights typically concern artistic, musical and literary works, but they can also apply to films, software, and even architectural works.  Words and short phrases cannot be protected by copyright.  Although protect applies as soon as the work is fixed to a tangible medium, it is highly recommended that you register your work.

What is a Trademark?

Trademark protection grants exclusive rights to the owner of recognizable words, designs, and expressions. This form of intellectual property serves as a brand identifier that’s meant to prevent a likelihood of confusion among consumers. Logos, names and slogans are the most commonly trademarked items, but some brands have even secured protection over unique colors and sounds.

A design used as part of a logo can be protected as both a trademark and a copyright.  When it comes to slogans, however, typically only trademark protection applies.  For more information about the differences between trademarks and copyrights, see our trademark vs copyright page.

What is a Patent?

Patent protection is granted to the creator of novel, non-obvious and useful inventions. Instead of exclusive rights, the owner of a patent has the right to exclude. Since their invention may be an improvement upon a currently patented item, they might not have the right to produce, import, sell or use their creation until the previous patent expires.

Newly discovered laws of nature or natural substances cannot be patented. This is also the case for mathematical formulas, fundamental truths, calculation methods and abstract principles. Processes that utilize these concepts, however, may qualify for patent protection. Patent and trademark applications each go through the U.S. Patent and Trademark Office. Copyright applications are processed by the U.S. Copyright Office.

Difference Between Patent and Trademark

Patent Registration Process

Your initial patent application will be submitted through the USPTO’s Electronic Filing System (EFS-Web). Using the online system is ideal since applying for a patent via mail will incur additional fees. If your application meets all minimum requirements, it will be assigned a filing date and application number. This allows you to begin claiming ‘patent pending’ status.

Once you receive a filing date, your registration will be forwarded to a patent examiner. This examiner will make sure you’ve met all statutory requirements and followed the appropriate patent format. They’ll also search for relevant prior art. Just as is the case with trademarks, you’ll receive an Office Action if the examiner has any objections to your application.  The patent process is notoriously slow.  It can take years from the time you file a patent application until it is examined.

This will begin a process of exchanging phone calls and letters with the examiner. This continues until an agreement is reached about what your patent will actually cover, or if it can be approved at all.  For more information see our patent registration page.

Trademark Registration Process

The trademark registration process begins when you file an application through the Trademark Electronic Application System (TEAS). While you can submit an Intent to Use trademark application, the process will go faster if your trademark has already been used in commerce. Unless there are serious flaws in your application, your file will be forwarded to a USPTO examining trademark attorney within four months.

The review process can take a month if everything goes smoothly. If there are problems with the trademark, you’ll receive an Office Action detailing the issues so you can correct them. Once the reviewing attorney approves your application, your requested trademark will be published in the Official Gazette for a 30-day opposition period.

If no one files a trademark opposition or requests that the opposition period be extended, the USPTO will typically register your trademark within three months. If you filed on an intent to use basis, the process can only be completed once you submit a statement of use.  An opposition filed at the trademark trial and appeal board will need to be resolved before your trademark will register.   For more information, see our trademark registration page.

Trademark vs Patent Searches

An important part of the application process – for both patents and trademarks – is performing a search. While this isn’t required, it will help you avoid wasting time, money and potentially infringing upon someone else’s intellectual property.  While a trademark search can be done through the Trademark Electronic Search System (TESS), we highly recommend that you have a trademark attorney do the search for you.

While registration with the USPTO is highly recommended for all trademarks, it is not required to have trademark protection.  If a trademark is in use in commerce, it may be entitled to common law trademark rights. While common law rights don’t offer all the benefits of federal registration, they still enjoy some protections. This makes it prudent to perform a thorough search outside of TESS as well.

Patent searches also require searching outside of the U.S. Patent and Trademark Office.  The reason for this is that the patent must be a novel invention.  So you will need to ensure that no prior art depicting your invention exists. Not every novel idea is patented, and if someone has publicly disclosed a similar creation before, it could void your potential rights. This means that searching prior literature, industry publications and any related works you can access is a good idea.

Revoked and Cancelled Trademark vs. Patent

Even after being granted a trademark or patent registration, however, there is no guarantee of continued protection. A process exists for the public to appeal approved patents and trademarks they believe should not be registered. These procedures vary in their implementation, but the result is the same.

Trademark Cancellations

Once a trademark has been approved, it can be appealed through the submission of a trademark cancellation. Only individuals who have standing – meaning they may be directly harmed due to a registration – can file such a petition. If filed within five years from the granting of federal protection, a trademark can be cancelled for the same reasons it could’ve been denied with a notice of opposition.

Here are just a few examples of potential reasons for cancellation:

  • Trademark abandonment has occurred.
  • There is a likelihood of confusion among consumers.
  • Original filer had no bona fide intent to use.
  • Trademark genericization has occurred.
  • Fraud was committed during registration.

Once five years have passed since registration, there are fewer grounds for cancellation. Those who may be harmed by your trademark use, however, may still have standing. While cancellation can occur through trademark litigation, the process is more streamlined when it’s handled by the Trademark Trial and Appeal Board (TTAB).

There are about 2500 cancellations filed each year.  These are becoming more common, but you can minimize the likelihood of such an issue with a thorough trademark search.

Patent Ex Parte Reexamination

An ex parte reexamination can occur when a third party requests that a current patent be reexamined. Unlike the trademark cancellation process, the requestor needs no standing to submit this request. Anyone is legally allowed to bring potential issues to the attention of the USPTO.

The requester must show that a substantial and new question of patentability (SNQ) exists. In most cases, this is the end of the third party’s involvement. The requestor may need to respond if the owner files a rebuttal statement, but most proceedings only involve the patent owner and USPTO. A three-person panel known as the Central Reexamination Unit (CRU) will handle this process.

If the patent owner is unhappy with the CRU’s final decision, they may appeal to the Patent Trial and Appeal Board (PTAB). Additional recourse may be available through the federal court system, but a reexamination through the CRU alone can take about two years. If further appeals fail, the patent may be invalidated.

Trademark vs Patent Maintenance

While patents typically last for 20 years and trademark protection could be indefinite, maintenance is required to continue registration benefits. Design patents are exempt from this rule, but they only last 14 years. Utility patents, however, require that maintenance fees be paid multiple times following initial registration.

Trademarks require similar maintenance. Five to six years after registration, you must submit a Section 8 Declaration of Use.  At this time a section 15 seeking an incontestable trademark should also be filed.  Nine to ten years after registration, another declaration must be sent to the USPTO along with a Section 9 renewal. From this point forward, both documents must be submitted in ten-year intervals from the date of registration.

Unlike patent maintenance, maintaining a trademark requires you to show continued use in commerce. There are some acceptable reasons for non-use, but you must show the USPTO that these issues were beyond your control. Similar to patent maintenance, however, trademark renewals require government fees.

Patent vs Copyright vs Trademark vs Trade Secret

Patents, copyrights and trademarks have distinct differences between them, but they’re also substantially different from trade secrets. Trade secrets are a form of intellectual property that provide businesses with an economic advantage over their competitors. Unlike other forms of IP, you won’t need to register trade secrets with the USPTO or Copyright Office.  Instead, for protection to apply the key requirement is that the trade secret be kept secret.

Trade secrets can include processes, ingredients, and commercial methods. To secure trade secret protection, the IP in question must not be reasonably ascertainable or generally known. Many creations that constitute trade secrets could be patented, but patents only provide a finite monopoly over an invention.

A patent can be reproduced by anyone after it expires. Trade secrets, on the other hand, maintain permanent protection as long as they don’t become public knowledge.  Trade secret litigation – based on the misappropriation of such secrets – has about 1000 cases filed per year. In over 90 percent of these cases, the misappropriating offender was either an employee or partner.

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