What are the differences among a trademark, a patent and copyright?

A trademark is a phrase, word or design that identifies your company and it’s good or services.  It can be used to distinguish you from your competitors and prevent others from using your trademark.  You can register your trademark at the state or federal level.  A trademark is specific to its use of scope (i.e. Apple is for computer electronics etc. but not for everything under the sun).

A patent is a property right granted to the investor of a new, unique and useful invention, discovery or process. It prevents others from using or selling your invention for a definite period of time, typically for 20 years.

A copyright protects original work such as songs, books, movies, articles etc.  The work must exist on a physical or digital medium. Copyrights are automatic upon creation of the original work, but registration is highly recommended so that the claim is part of the public record.

What are the different types of patent?

There are different categories of patents available under the U.S. patent law:

  • Utility patent (protects how something works)
  • Design patent (protects how something looks)
  • Plant patent (protects the characteristics of new and unique plants)

Before you file the patent application, you want to make sure your invention meets USPTO's patentability requirements. Researching and studying prior art will help you predict whether an examiner will find your invention non-obvious.

Be careful not to sell or offer your products for sale before submitting your patent application. The “on-sale-bar” doctrine could prevent you from getting your patent if you commercially exploit the products to the public.

If you'd like to get simpler and quicker protection, you could file a provisional patent application that lasts for a year. That will give you more opportunities to conduct research and finish the invention later.

What makes a strong trademark?

Generally speaking, trademarks that fall into one of the categories below are afforded at least some level of intellectual property protection.

1. Suggestive

“Suggestive” trademarks do just that: they suggest a quality or characteristic of a product or service. Importantly, marks of this variety require some level of imagination on the part of the consumer to connect the trademark to the product or service, so they are afforded more protection than descriptive marks.

A popular example of a suggestive trademark is “Netflix.” If we divide the mark into two parts, we get “net” (indicating an internet service) and “flix” (a play on “flicks,” suggesting a service related to movies). Taken together, the name “Netflix” suggests an internet-based streaming service.

2. Arbitrary

An arbitrary trademark is a word or image that already exists, but  has nothing to do with the business that uses it. Examples of “arbitrary” mark are “Apple” as applied to personal computers and “Domino” as applied to pizza.

3. Fanciful

Finally, the most distinctive trademarks are those that are “fanciful.” Marks that fall into this category are inherently distinctive because they are completely made-up. Popular examples include “Exxon” and “Google.” These types of trademarks are afforded the broadest scope of intellectual property protection.

How do I protect my copyright?

A copyright is a bundle of exclusive rights granted to authors. If you meet the “originality” and “fixation” requirements, you receive a copyright automatically. "Originality" means the work cannot be a mere mechanical reproduction of a previous work, nor the work consists of just a few phrases or words.

“Fixation” means your work must be fixed in a tangible medium of expression like stored on some medium where it can be reproduced or communicated.  

Although there is no formality like filling a copyright application, it’s required before an author can pursue an infringement lawsuit by the U.S. Copyright Office. Once you submit the application to the United States Copyright Office, the application becomes part of the public record. This means it can be viewed by the public upon request. Your work could fall within the following categories: individual literary work, visual arts work, motion picture, musical work, sound recording, other per- forming arts work, or single serial issue. You can also register multiple works with one application. The Copyright Office provides two ways for you to file an application: online or by paper.

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