I often speak with owners of small businesses or start ups that want to protect their new product or ideas from being copied by competitors. Some tell me they would like to copyright their new product or idea. Some tell me they need a trademark for their new product or idea. And some say they need a patent for their new product or idea. So, which is it?
Intellectual property law, or copyright, trademark and patent law is a subject that usually doesn’t come up in the day-to-day conversation of entrepreneurs, so it is understandable that they are unsure of whether they need a copyright, a trademark or a patent to protect their new product or idea. The following provides some basic information on the three types of intellectual property and what they protect.
A copyright protects an original work of authorship fixed in a tangible medium of expression. Examples of works of authorship include literary works, dramatic works, musical works, artistic works, and other works of art. These works of authorship are fixed in a tangible medium of expression as a written text, a recording, a painted picture, a photograph, or a sculpture.
A trademark is a word, a phrase, a symbol and/or a design, or a combination of these that identify a source of goods with which the trademark is associated. A trademark is also used to distinguish the goods of one party from the same or similar goods of another party. A service mark is similar to a trademark, but identifies a source of services and distinguishes the services of one party from the same or similar services of another party. The term “trademark” is often used to refer to both trademarks and service marks.
A patent is a property right to a novel and non-obvious invention, granted by the U.S. Patent and Trademark Office to the inventor. The property right is granted for a limited time in exchange for the inventor’s public disclosure of their invention in the granted patent. The duration of the property right is typically twenty years from the date that an application for the patent was filed at the Patent and Trademark Office. The property right granted includes the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States, or importing the invention into the United States. A patent can be a utility patent, and design patent or a plant patent.
A utility patent is granted for a new, non-obvious and useful process, machine, article of manufacture, composition of matter, or an improvement of any of these.
A design patent is granted for a new, original and ornamental design of an article of manufacture. A design patent has a term of fourteen years from the date of grant.
A plant patent is granted for asexually reproduced plant varieties. The term of a plant patent is twenty years from the date on which the application for the plant patent was filed.
More information on patents and trademarks can be found on the Patent and Trademark Office website at www.uspto.gov.
More information on copyrights can be found on the Copyright Office website at www.copyright.gov.