What’s the difference? And does it matter?
Trademark vs copyright vs patent…whether it’s by using one, two, or all three kinds of protection, designating your intellectual property is more important than ever. The Internet makes it easy to find all kinds of products—including yours. That also makes it easier for the unscrupulous to find you and then mimic, infringe, or completely rip you off.
The only way to have legal protection all in parts of the United States is to federally register what you’ve worked so hard to create.
But first, let’s define these three protective terms. Even though they are often used interchangeably, they mean very different things.
Trademark
The ultimate authority on marks and patents is the United States Patent and Trademark Office, called USPTO for short. It is the official grantor and registrar of the both kinds of records.
Trademarks fall into three classes, easily recognized by the symbols that go with them.
- Trademark—TM
- Service mark— SM
- Registered mark—®
Per the USPTO,
“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. Some examples include brand names, slogans, and logos. The term “trademark” is often used in a general sense to refer to both trademarks and service marks.”
A company need not actually register TM usage through the USPTO. “You can establish “common law” rights in a mark based solely on use of the mark in commerce, without a registration.”
Using the TM lets competitors know you are serious about your brand. Hopefully they will treat it with the respect it deserves. That protection, however, extends to a small geographic area. On the other hand, federal registration provides stronger legal backing in case of a lawsuit—throughout the entire country.
Plus, successfully registering on the federal level will allow you to ultimately use the ®. Unlike a TM or SM, you can’t just slap a ® on something. The USPTO must grant it.
Once a trademark is in the federal system, it can be protected forever—as long as it is still in use and the appropriate fees are paid.
Copyright
Copyrights deal with authorship and artistic works. This includes things like books, movies, blogs, website design, paintings, songs, software, and architecture. Copyrights are handled by the U.S. Copyright Office, a division of the U.S. Library of Congress. Just like trademarks, you don’t have to register. Just start using the ©. But again, unless you federally register, it’s hard to win a legal battle.
According to gerbenlaw.com,
“Unlike a trademark, which protects owners against others using any mark deemed confusingly similar, copyright protections are limited to the exact piece of work or extremely close replicas. A copyright will not protect concepts or ideas, but rather how those concepts or ideas are expressed. For instance, the concept of a painting about a starry night is not protected, but Vincent van Gogh’s famous interpretation certainly is.”
Works created by an individual extend 70 years beyond the death of the author. Works for hire or done anonymously or pseudonymously last 95 years from the publication date or 120 years from the creation date, whichever is shorter. Then it falls into the public domain.
Patent
If your company invents a tangible product, it can be patented. But there are catches. The USPTO states that:
“A patent is a limited duration property right relating to an invention, granted by the United States Patent and Trademark Office, in exchange for public disclosure of the invention. Patentable materials include machines, manufactured articles, industrial processes, and chemical compositions.”
There are different types of patents:
- Design provides protection for 15 years from issuance
- Utility and plant patents provide 20 years from the date of application
Sometimes extensions can be granted, or adjustments made, but those are on a case by case basis.
Still confused between trademark vs copyright vs patent?
As the USPTO puts it:
“If you invent a new kind of vacuum cleaner, you would apply for a patent to protect the invention itself. You would apply to register a trademark to protect the brand name of the vacuum cleaner. And you might register a copyright for the TV commercial that you use to market the product.”
So, it’s not really trademark vs copyright vs patent. Or not even copyright or trademark or patent. Each term applies to different parts of the inventive and creative process.
Granted, there can be overlapping areas. For example, a slogan is so cool you decide to both trademark it and copyright it. But for the most part, the differences are straightforward.
Next month, we’ll do a deeper dive into Trademarks, so be sure to read Part 2 of this blog!
How trademark usage plays out among product distributors
Not every distribution company is careful to reproduce trademarks. Petra®, however, does honor the intellectual property of manufacturers. We recognize that every TM and ® represents untold hours of painstaking work and amazing creativity, plus a commitment of hard-earned dollars. So, in our own databases and materials, we use the marks that are supplied to us. And if we think there’s probably a word mark but it hasn’t been supplied, we’ll hunt on the company’s website and in USPTO records for verification. If we find one, we’ll use it.
However, when it comes to online selling, usage becomes more problematic. Some computer algorithms can’t handle them and automatically strip them off. Many marketplace resellers specifically ask they not be used when content is submitted. These scenarios are out of our control and need to be taken up with the online seller directly.
So, if you’re looking for a distributor that truly has your back, even down to the TM and ®, consider Petra. To find out more about what Petra can do to help manufacturers sell their products and expand their markets, visit petra.com.
