Can I Patent my Trademark While Getting a Copyright?

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Differences Between Patents, Trademarks and Copyrights

You’ve heard the terms, patent, copyright, and trademark (collectively known as 'intellectual property'). How do you distinguish them? Let’s use a Nike running shoe as an example to illustrate some of the differences.

Trademarks – Creating Brand Awareness

When shopping for running shoes, you may prefer one brand over another.  When you go to the store and ask for Nike shoes, you are using the trademark – Nike – under which this particular brand of sneakers is sold.  The company that manufactures the sneakers also happens to be called Nike, but they could be called Big Sneaker Company and sell sneakers under the trademark, Nike (just as the Sears Company sells various items under the trademark, Craftsman). In this manner the trademark functions as a way for consumers to distinguish between products and services. A trademark can be any signifier that performs this function of creating an association with a business whether it is a phrase (McDonald’s "I’m Loving it"), logo or symbol (McDonald’s double arches), design (the Nike "swoosh"), shape (the classic Coca Cola bottle), colors (the UPS brown and John Deere green), or any combination of these items. Trademarks can last for as long as the business continues to sell products or services using the mark. (When a trademark is used for a service -- such as FedEx or H&R Block-- it is often referred to as a service mark. However, it is legally the same as a trademark.) If you own a trademark, you can stop others from using a similar mark on the same or similar goods or services. That’s because the standard of trademark infringement is to prevent consumers from being confused as to the source of goods or services. Although it is not required, many businesses strengthen their rights to a trademark by registering it with the U.S. Patent and Trademark Office (USPTO). Federal registration creates a national priority for the owner, allows the owner to use the registered symbol ®, and provides benefits if the owner has to chase an infringer.

Learn the Basics of Intellectual Property.

Patents – Protecting Inventions and Designs

Nike employs many scientists and other experts to create innovate devices and designs to be used in connection with their running shoes. For example, the Nike AIR system is a process in which a pressurized gas is contained in polyurethane. To protect these innovations, Nike obtains utility patents. A utility patent is granted to anyone who invents any new and useful process, machine, article of manufacture or composition of matter.  In addition, you can obtain a patent for any improvement upon an existing process, machine. The U.S. Patent and Trademark Office (USPTO) also grants design patents to any ornamental design that is used for a useful device. So, a unique running shoe design may be protected by design patents (and Nike and its rivals have many design patents).

In the United States, a patent owner has the right to exclude others from making, using, selling, offering for sale, or importing the patented invention for 20 years from the filing date.  As the owner of the patent you have patent rights and do not have to actually use or make your invention, you still have the right to exclude others from making and using your patented invention. You must apply for a patent (or hold your place in line for one year with a provisional patent application) if you want patent rights. In addition, you must file within one-year of any public use, disclosure or sale of the invention. The patent application is complex and often requires the assistance of a patent attorney, an attorney licensed to practice before the USPTO.

Find out more about Current Patent Laws.

Copyrights – Protecting Creative Expressions

The printed or video Nike advertisement, the written story enclosed within the shoe box, and the Nike advertising music are all protected by copyright law. Copyright law protects a variety of original expressions, including art, sculpture, literature, music, songs, choreography, crafts, poetry, software, photography, movies, video games, videos, websites, architecture, and graphics. Protection occurs automatically -- that is, you acquire copyright once you fix the work in a medium -- but this automatic protection can be enhanced by registering the work with the U.S. Copyright Office. Copyright lasts for the life of the work’s creator (its author) plus 70 years. In cases where the creator is a business, the copyright lasts between 95 and 120 years. Copyright does not protect ideas or facts; it protects only the unique way in which ideas or facts are expressed. For instance, copyright may protect an author’s science fiction novel about a romance between an earthling and a space alien, but the author cannot stop others from using the underlying idea of an intergalactic love affair. A creative work is protected by copyright the moment the work assumes a tangible form—which in copyright circles is referred to as “fixed in a tangible medium of expression.” Contrary to popular belief, providing a copyright notice or registering the work with the U.S. Copyright Office is not necessary to obtain basic copyright protection.

Learn more in our Copyright FAQ.

Summary

Patents protect new inventions, processes, and some designs. Trademarks protect those names, logos and other signifers that distinguish products and services. Copyrights protect creative expressions such as writing, music, art and video. Some creations such as software can be protected by patents and copyrights. Patents are the only form of intellectual property law that must be registered for protection to occur. Copyrights, patents, and trademarks operate independently of each other -- that is, you can have a patent without having a trademark or copyright, and vice versa. However, most businesses review all of their creations with an eye towards seeking the maximum intellectual property protection for each. 

Learn more about Trademarks.

From the author: U.S. Patent and Trademark Office
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