Which Protection Do I Need: Patent, Copyright, or Trademark?

Which form of intellectual property protection is right for you?

By , Attorney · Benjamin N. Cardozo School of Law

When most people think of "property," they imagine something tangible, such as real property (usually real estate) or personal property (such as jewelry, computers, and so forth). But intellectual property confers legal rights in intangible form. The three primary types of intellectual property are copyrights, trademarks, and patents. Each of these three bodies of law protect very different types of work, and it's worth learning the differences between them before determining whether you might qualify for protection.

What Is a Copyright?

Copyright is a form of protection for original works of authorship that are "fixed in a tangible medium of expression." Subjects of copyright might include a poem, a sculpture, a piece of music, or a film.

The Copyright Act of 1976 grants a number of exclusive rights to copyright owners. These include the exclusive right to reproduce the work, an exclusive right to distribute the work, and the exclusive right to perform or display the work. This bundle of rights allows a copyright owner to be flexible when deciding how to realize commercial gain from the underlying work. The owner may sell or license any of these rights to a third-party. For more on copyright law, check out Nolo's Copyright Handbook, by Stephen Fishman.

What Is a Trademark?

A trademark is a word, name, phrase, or logo that identifies a product or service and helps distinguish it from that offered by the competition. Trademarks can be established through actual use in the marketplace, though they can also be registered with the U.S. Patent and Trademark Office.

Trademark law aims to prevent consumer confusion by allowing a trademark owner to sue an infringer. For example, Ford is a well-known car manufacturer. If a new company started making cars and labeled them as "Fords" but charged significantly less, consumers might be tricked into purchasing the competing company's cars, largely because the consumers will assume that they are the same qualify as "real" Fords. In this situation, the law would allow Ford to sue this infringing company for damages.

See How to Do a Trademark Search Before Choosing a Business or Product Name.

What Is a Patent?

A patent is a grant to an inventor that allows the inventor to monopolize the manufacture, use, sale, and importation of an invention. This right lasts a limited time (currently 20 years after the application date) and gives the patent owner the right to recover damages in a lawsuit against an infringer. There are multiple types of patents available to inventors depending on the nature of the invention. For more, see Guide to Patents.

What's the Difference Between Patents and Trademarks?

A patent allows the creator of certain kinds of inventions that contain new ideas to keep others from making commercial use of those ideas without the creator's permission. Trademarks, on the other hand, are not concerned with how a new technology is used. Rather, they protect names of products and services, logos, and other devices—such as color, sound, and even smell—that are used to identify the source of goods or services and distinguish them from the competition.

For example, let's say Juan invents a new type of hammer that makes it difficult to miss the nail. Not only can Juan prevent others from making, selling, or using the precise type of hammer he invented, but he may also be able to apply his patent monopoly rights to prevent people from making commercial use of any similar type of hammer during the time the patent is in effect (typically 20 years from the date the patent application is filed).

Generally, patent and trademark laws do not overlap. When it comes to a product design, howeversay, jewelry or a distinctively shaped musical instrument—it may be possible to obtain a patent on a design aspect of the device while invoking trademark law to protect the design as a product identifier. For instance, an auto manufacturer might receive a design patent for the stylistic fins that are part of a car's rear fenders. Then, if the fins were intended to be—and actually areused to distinguish the particular model car in the marketplace, trademark law may kick in to protect the appearance of the fins.

For more information about trademarks, see Nolo's Trademark Resource Center. For a clear explanation of the differences between patents and trademarks, and of the entire patent process, get Patents for Beginners by David Pressman and Richard Stim (Nolo).

What's the Difference Between Copyrights and Trademarks?

Copyright protects original works of expression, such as novels, fine arts, music, audio recordings, photography, software, video, cinema, and choreography by preventing people from copying or commercially exploiting them without the copyright owner's permission. Copyright laws do not protect names, titles, or short phrases.

Trademark law, by contrast, protects distinctive words, phrases, logos, symbols, slogans, and any other devices used to identify and distinguish products or services in the marketplace. Trademark law is primarily aimed at helping consumers to quickly identify the source of goods; the goal is to help consumers avoid confusion. "Apple" is a trademark for the famous computer company. Its recognizable apple-shaped logo is also a trademark.

There are, however, areas where both trademark and copyright law may be used to protect different aspects of the same product. For example, copyright laws may protect the artistic aspects of a graphic or logo used by a business to identify its goods or services, while trademark may protect the graphic or logo from use by others in a confusing manner in the marketplace. Similarly, trademark laws are often used in conjunction with copyright laws to protect advertising copy. The trademark laws protect the product or service name and any slogans used in the advertising, while the copyright laws protect the additional creative written expression contained in the ad.

For more information about copyright law, see the Copyright section of Nolo's website.

What's the Difference Between Patents and Copyrights?

With the exception of innovative designs, patents are closely associated with inventions and processes that are useful. By contrast, copyrights are often used to protect expressive arts such as novels, paintings, music, phonorecords, photography, software, and films.

While it is possible to get a patent on technologies used in the arts, copyrights are normally the mechanism for one artist to "own" his or her own creations, and prevent other artists from "stealing" it. For example, an inventor could apply for a utility patent on an innovative camera lens used to create a movie. But the author of the script would receive copyright protection and the cameraman could receive a separate copyright in the cinematography.

An exception to the general rule is that design patents, which protect the ornamental design of products, can overlap with copyrights. These two legal protections overlap when functional objectsfor example, guitars, table tiles, clay pots, or running shoesembody a distinctive or pleasing visual appearance.

Further Resources on Intellectual Property

To learn more about copyright protection, visit the website of the U.S. Copyright Office. To learn more about patent and trademarks, visit the website of the U.S. Patent and Trademark Office. Need further help? For a comprehensive and readable guide to patent, copyright and trademark law, read Patent, Copyright & Trademark: An Intellectual Property Desk Reference by Richard Stim (Nolo).

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