The difference between patents, trademarks, and copyrights

Guest post by Samar Shah of Shah IP Law, PLLC, a patent strategy law firm in San Antonio.

Startup clients, who are just getting their businesses off the ground, inherently understand the value in protecting their intellectual property. They are rightfully concerned that their nascent venture may be easily replicated by someone else, or that a larger competitor will apply its significant resources to out-execute on the startup’s original idea.

Although startups immediately grasp the value of IP protection, they often flounder at selecting the best option for protecting their business ventures. In this post, we discus some of the most common ways that startups and more established businesses protect their intellectual property, including patents, trademarks, and copyrights.

1.     Patents protect products, processes, and chemical compositions

Patents protect (1) products, processes, and chemical compositions that are (2) novel and non-obvious. Your idea must meet both of these requirements in order to be patent eligible. Examples of patent eligible inventions include semiconductors, chemical fertilizers, and processes for manipulating genetic traits in mice, etc.

In order to figure out whether your idea is sufficiently novel and non-obvious, you must look at your invention from the perspective of a person who is ordinarily skilled in your field or technology. This perspective shift often requires us to perform a “prior art search” to identify pre-existing alternative solutions to your inventive idea, and identify the reasons why an ordinarily skilled artisan would not have come-up with the same solution as the inventive idea.

Unlike some of the other forms of protection discussed here, patents must be filed—and granted—by the United States Patent Office in order to confer protection. The standard length of a patent term is 20 years.

2.     Trademarks protect business names and logos

Trademarks protect (1) word, phrase, symbol, design, color, sound, scent, or any combination thereof that (2) are distinctive by identifying and distinguishing products or services.

The distinctiveness of trademarks is measured along a spectrum, of increasing distinctiveness: (1) generic, (2) merely descriptive, (3) suggestive, (4) arbitrary, and (5) fanciful. Generic terms, such as “pizza,” or “car wash” receive little protection, but arbitrary terms (which include the use of generic terms applied to an unrelated product), such as “Apple” for computing devices, and fanciful terms (which include the use of newly invented words), such as “Exxon” or “Google” receive a wider scope of protection.

Trademark rights are created through use, not registration. Standard use protects the owner in the geographic area where the mark is used, in the channels of trade in which the products or services are offered or sold, and for those goods and services with which the mark is associated. Unlike patents, which have a limited term, trademarks can last for as long as they are properly maintained.

3.     Copyrights protect original creative works

Copyrights protect (1) original works of authorship that are (2) fixed into a “tangible form.” Works of authorship that are typically protected include literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. In order for a work of authorship to be original, it must not be derivative or be copied from someone else. And a fixed “tangible form” refers to a medium, such as a book, a photo, music sheet, or a recorded song. A work must meet both of these requirements in order to receive copyright protection.

A copyright is created as soon as you create an original work and fix it into a tangible medium. However, in order to better protect your work and prevent others from using it, we typically recommend that you register your copyright.

The duration of copyright protection depends on several factors. For works created by an individual, protection lasts for the life of the author, plus 70 years. For works created anonymously, pseudonymously, and for hire, protection lasts 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.

4.     Conclusion

In some cases, a business may be protectible by all three of these options. The selection of an appropriate IP protection strategy for your business comes down to an analysis of the various options discussed here along with a proper understanding of the unique value proposition of your business.

We recommend that you contact an attorney to learn more about your options. The materials in this post are made available for informational purposes only and do not constitute legal advice. Moreover, the receipt of information contained in this post does not create an attorney-client relationship.