What Is a trademark and how is it different than a copyright or a patent?
I’m Angela Langlotz, trademark attorney. I go live here to discuss trademark and copyright issues. So this is a question that I get a lot. What’s the difference between a trademark, a patent, and a copyright? They all protect intellectual property — that is, intangibles, things that we cannot see or taste or smell — but they protect certain aspects of our intellectual property. The reason why so many people get the three types of intellectual property confused is because they may all apply to certain things, ideas, or objects, but each of the three types of intellectual property protects different aspects of that idea or object.
You can think of a trademark as protecting a brand identity. That is the connection between a certain good or service and a symbol or word or phrase that’s used in conjunction with the sale or offer for sale of that good or service. That is a trademark. A trademark can be any “device” — that’s the term used in the Lanham Act — that allows the consumer to distinguish between two or more goods or services. In order to be a trademark, the “device” has to be distinctive as to the goods or service, such that the consumer knows, when the consumer perceives the “device,” that the “device” is a symbol that is connected to that good or service.
Such a “device” can be anything — it can be a word, a phrase, a color, a smell, a sound — it can be anything that distinguishes the goods and services from a competitor’s goods and services. Some famous examples of weird “devices” are the color green for barbeques, the sound that distinguishes NBC’s broadcasting services, Harley-Davidson’s distinctive tailpipe rumble, Nike’s JUST DO IT phrase, and the Tiffany packaging that denotes a special gift inside a blue box.
A copyright protects creative works, things like poetry, music, choreography, architectural plans, books… anything that is creative and is reduced to a tangible medium of expression is covered by copyright. It’s important to note that copyright covers only works “reduced to a tangible medium of expression,” that is, it has to be fixed in a tangible medium. This means that copyright does not protect mere ideas. The idea has to be embodied in the physical manifestation of the creative work. This means that an idea for a creative work is not covered by copyright, but when you write down the idea in your next great novel, then it is covered by copyright.
Works are protected by copyright as soon as you produce them; you don’t have to register them with the copyright office. If you do register them with the copyright office, however, you get rights to enforce your copyright and the right to obtain statutory damages for any infringements of your copyright. This means that you don’t have to prove that you were damaged, only that someone copied your work, and you get damages.
Patents are for useful inventions that are new and non obvious. So if you’ve got something that’s useful and you want to protect the idea for that thing, and it can be a physical thing like some gadget, or it can be something not physical like a business method such as Amazon’s one click ordering. I think that’s probably still protected by a patent, but not for much longer because patents only last for 20 years. Unlike trademarks, patents expire after 20 years. A patent is, in essence, a limited monopoly in exchange for detailed information about your invention. The inventor discloses the technology, and in exchange for doing so, is rewarded the exclusive right to make, use, or sell that technology for the next 20 years, beginning on the date the patent was filed.
So those are the main differences between patents and copyrights and trademarks. Patents are for useful inventions, copyrights are for works of artistic creative expression, and trademarks are for protecting brands. If you have trademark or copyright law questions, drop them into the comments below. I’ll answer them on a future live video. Find me online at trademarkdoctor.net.
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Contact Dallas, Texas trademark attorney Angela Langlotz today to get started on a trademark application for your valuable brand.
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