Intellectual property is the foundation of a business’s unique value proposition. Understanding the different types of intellectual property protection available for patents, trademarks, and copyrights is crucial to safeguarding your company’s unique creations and preventing others from using them without permission.

Patents, Trademarks, and Copyrights

Copyrights, patents, and trademarks are three of the most common forms of intellectual property protection businesses can seek to protect. This article explores the differences between copyrights, patents, and trademarks so that you can decide which type of intellectual property protection is best for your business.

Copyrights

What is a copyright?

A copyright is a form of legal protection that automatically applies to any original work of authorship that is fixed in a tangible medium. Copyrightable works include books, articles, songs, photographs, sculptures, choreography, sound recordings, and motion pictures. Tangible media include paper, canvas, film, and digital formats. “Fixed” means that others can access it in its tangible form. A haiku scrawled on a napkin can meet the standard of fixed, but a melody that exists only in someone’s head or an unsaved document on a computer is not yet fixed. Copyrights protect a creator’s rights to exclusively reproduce, distribute, perform, or display a work.

Is copyright registration required?

Copyright registration is not required to establish a copyright; a copyright attaches as soon as an original work is created in tangible form. At that point, copyright owners can start using the copyright symbol © as an added measure of protection. Copyright owners can also transfer all or part of their rights to someone else through licenses, assignments, and other types of transfers.

What are the benefits of registering a copyright?

If someone steals your work, it can be difficult to prove damages arising from copyright infringement, and you won’t be able to file a copyright infringement lawsuit if you have not registered your copyright. Registering an original work with the U.S. Copyright Office with the Library of Congress provides many benefits, such as the ability to sue for damages of up to $150,000 and attorneys’ fees in case of willful infringement.

How long does a copyright last?

The duration of a copyright depends on the year it was created. Since 1978, most compositions are -protected until 70 years after the creator’s death. For anonymous works and works created for a company by its employees, the protection lasts only 95 years.

Patents

What is a patent?

Patents encourage innovation and commercialization of technological advances by providing inventors with exclusive rights to their inventions for a certain period of time. A patent essentially creates a temporary monopoly. After that time is up, the law releases the monopoly, allowing the public at large to benefit from new technology.

What do patents protect?

A patent protects technical inventions such as new and useful processes, machines, manufactured goods, and compositions of matter as well as improvements to them. For example, a chemical composition, pharmaceutical drug, software code, engines, and complex machinery could all be patented. However, you cannot patent a mere idea. For something to be patentable, it must actually exist in a tangible form, as well as be what the law calls “useful” and “non-obvious.”

What are the different types of patents?

Inventors can file a patent application and be granted a patent by the U.S. Patent and Trademark Office (USPTO). The USPTO grants three types of patents:

• Utility: Utility patents cover the creation of new and improved processes, products, and machines. They last for up to 20 years and require the payment of maintenance fees.
• Design: Design patents apply to the unique visual identity of manufactured items, such as the unique shape of a headlight on a car. It does not apply to an invention’s functional aspects. These patents last for 15 years.
• Plant: Plant patents protect a new, unique plant’s characteristics from being copied, sold, or used by others. The plant must be able to produce genetically identical offspring only through root cuttings, bulbs, division, or grafting and budding. Plant patents last for up to 20 years.

Compared to the copyright registration process, the patent application process is far more expensive, complex, and time-consuming. For these reasons, applying for a patent requires the assistance of an experienced patent attorney or agent.

Trademarks

What is a trademark?

A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. Examples include brand names, slogans, and logos. Without registration, brands can use the trademark symbol ™ or the service mark symbol SM.

What are the benefits of trademark registration?

Trademark law prevents other companies from using any marks that may cause a “likelihood of confusion” with existing marks, so businesses cannot coopt another company’s logo or brand name — but only if they sell goods or services in a related industry. That is why so many companies with the brand “Delta” can exist: an airline, an insurance company, and a faucet manufacturer.

As with copyright registration, a person does not need to register a trademark or service mark to receive protection. However, there are certain legal benefits to registering a mark with the USPTO. The most important benefit of registration is that it grants rights nationwide rather than just in the territories where the brand has been used in advertising. In the age of the internet, such nationwide rights are more important than ever before. In addition, trademark registration allows users to use the ® symbol and creates a public record of ownership. Federal trademark registration also allows brands to more easily register their marks in certain foreign countries. Additionally, companies can file with U.S. customs to stop fake or counterfeit goods from coming into the country.

Registered trademarks can last indefinitely as long as they are being used in commerce and the mark owner is paying the required maintenance fees.

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