Three Separate Systems That Protect Different Things
Trademark, copyright, and patent are three distinct bodies of law, each designed to protect a different category of intellectual property. They are not interchangeable, and they do not substitute for one another. A copyright registration does not protect a brand name. A trademark registration does not protect an invention. A patent does not protect creative expression. Understanding which system applies to which type of asset is the starting point for any IP strategy.
Trademarks: Source Identifiers
A trademark protects words, names, symbols, logos, slogans, and other identifiers that distinguish the source of goods or services in commerce. The purpose of trademark law is to prevent consumer confusion about who makes or provides a product. If you build a brand, the name and logo under which you sell are what trademark law is designed to protect.
Trademark rights arise from use in commerce and can be strengthened significantly through federal registration with the USPTO. A federal trademark registration provides nationwide priority, a legal presumption of ownership and validity, the right to use the registered trademark symbol, and access to federal courts for infringement claims. Rights in a trademark last indefinitely, as long as the mark remains in use and the registration is properly maintained.
What trademark law does not protect is the underlying product or the creative work associated with a brand. The name NIKE is a trademark. The design of a specific shoe is potentially patentable. The advertising copy in a campaign is potentially copyrightable. Each requires its own form of protection.
Copyright: Original Creative Expression
Copyright protects original works of authorship, including written works, music, visual art, photographs, films, software code, architectural designs, and other creative expression. The protection arises automatically the moment an original work is fixed in a tangible medium, meaning the moment you write something down, record it, or otherwise capture it in a form that can be perceived.
Copyright gives the creator the exclusive right to reproduce, distribute, adapt, display, and perform the work. Federal copyright registration is not required to have these rights, but it is required to bring a federal infringement lawsuit and to recover statutory damages and attorney fees. Registration within three months of publication also provides certain evidentiary advantages. Copyright registration is handled through the U.S. Copyright Office, not the USPTO.
Copyright protection lasts for the life of the author plus 70 years. For works made for hire, the term is 95 years from publication or 120 years from creation, whichever expires first. After the term expires, the work enters the public domain.
Copyright does not protect ideas, facts, titles, names, or short phrases. A book title is not protectable by copyright, though it may be protectable as a trademark if it identifies a series of works or is used as a source identifier in commerce. The content of the book is copyrightable; the name on the cover is a trademark question.
Patents: Inventions and Innovations
A patent protects inventions, which include new and useful processes, machines, manufactured articles, and compositions of matter, as well as new and ornamental designs for manufactured articles. A utility patent protects how something works or how it is made. A design patent protects how something looks. A plant patent protects new varieties of asexually reproduced plants.
Patent protection is obtained by filing an application with the USPTO that discloses the invention in sufficient detail that someone skilled in the relevant field could replicate it. In exchange for that public disclosure, the government grants the inventor a limited period of exclusivity: 20 years from the filing date for utility and plant patents, 15 years from issuance for design patents.
A key distinction between patents and trademarks or copyrights is that patent protection must be actively sought and granted. There is no automatic patent right. If an inventor publicly discloses an invention without filing a patent application, she has a one-year window under U.S. law to file, after which the invention enters the public domain and can no longer be patented. Internationally, many countries apply an absolute novelty standard, meaning any public disclosure before filing eliminates patentability entirely.
How the Three Systems Can Apply to the Same Business
A product and its associated brand can implicate all three systems simultaneously. A company that develops a new type of ergonomic keyboard might seek utility patents on the mechanical innovations that make it work, design patents on its distinctive appearance, copyright protection for the software bundled with it and the marketing copy written to sell it, and trademark protection for the brand name and logo under which it is sold. Each form of protection serves a different purpose and provides a different type of exclusivity.
The practical starting point for any business is to identify which assets are commercially valuable and which form of protection applies to each. Brand identity and source identifiers point toward trademark. Original creative output points toward copyright. Novel inventions and designs point toward patent. Most businesses will need to engage with at least two of these systems at some point, and knowing which applies to what makes it easier to prioritize and budget accordingly.
To talk through which protections make sense for your business, schedule a free consultation.
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