Do You Need Patent, Trademark or Copyright Protection?

Your business has unique products or services. What type of intellectual property protection do you need to make sure that your competitive advantage is not exploited by others?

It is important to understand whether you should file for a patent, a trademark, a copyright — or all three. While patents, trademarks and copyrights are all types of intellectual property, each protects something very specific.

For example, let’s say your company manufactures small colorful kitchen appliances including breadmakers and mixers. The distinctive name and logo on your appliances could be protected by a trademark. But you might also obtain patent protection for a unique new process that improves the way your appliances operate when compared with other appliances on the market. Assume further that each of your appliances comes with a written story about the company founder’s love of cooking. The story can be protected by copyright law.

As you can see, one company could need all three types of intellectual property protection. Here are some basic similarities and differences between patents, trademarks and copyrights:

Patent

Trademark

 Copyright

Definition

patent is a limited duration property right relating to an invention, which is granted in exchange for public disclosure of the invention. A patent provides exclusive rights to make, use, import, sell and offer for sale an invention for up to 20 years. 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 a product. The term “trademark” is often used to refer to both trademarks and service marks. copyright protects works of authorship, such as writings, music, poetry, novels, movies, computer software, architecture and works of art that have been tangibly expressed.

Do I have to file or register with the federal government to obtain protection?

Yes. A patent right is granted to inventors by the U.S. Patent and Trademark Office (USPTO).

 

Not necessarily, because there is potentially common law protection. Registration of a trademark with the U.S. government is not required but registering provides advantages including: a notice to the public claiming 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. Not necessarily because there is potentially common law protection. Registration with the U.S. government Copyright Office is not required but provides advantages. For example, registration establishes a public record of the copyright claim; it is necessary before an infringement suit is filed in court; and it establishes prima facie evidence in court if made within five years of publication.

Are ideas protected?

A patent cannot be obtained based on a mere idea or suggestion. For example, a patent is granted upon the creation of a new machine and not upon the idea or suggestion of a new machine. A complete description of the actual machine for which a patent is sought is required. You can’t trademark an idea or even a generic name. For example, you can’t trademark “wine” as the name of a product. A trademark must involve a word, phrase, symbol, design, or combination that identifies and distinguishes the goods or services of one party from another. Copyright does not protect ideas, facts, discoveries, systems, or methods of operation, although it may protect the way these things are expressed.

How long does filing or registration take?

The USPTO reports the current average patent application time is 24.6 months.

Applications received are numbered in sequential order and the applicant is informed within eight weeks of the application number and official filing date if filed in paper. If filed electronically, the application number is available within minutes.

According to the USPTO, it is difficult to predict exactly how long it will take a trademark application to mature into a registration, because there are many factors involved.

“The total time for an application to be processed may be anywhere from almost a year to several years, depending on the basis for filing, and the legal issues which may arise in the examination of the application,” the USPTO states.

It depends on the number of applications the Copyright Office has received at the time and the details of the application. Currently, average processing time for e-filing is three months for e-filing and ten months for paper filing.

The Copyright Office notes that if a work is copyrightable and meets all requirements, the effective date of registration is the date the Office received the completed application with correct payment.

Trade Secrets are a fourth type of intellectual property. Trade secrets consist of information companies have not revealed that give them an advantage over their competitors. They can include a formula, pattern, compilation, program, device, method, technique or process. A trade secret should be used in your business and you must take reasonable steps to protect it.

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