Have a brilliant new concept that you’re sure will make you a fortune? There’s a crucial step any inventor or artist should take before taking it to market — protecting it with a patent, trademark, or copyright from the government.
All three provide a legal shield against copycats trying to make a buck off your idea. However, each designation applies to a specific type of intellectual property, so it’s important to know the differences.
What Is a Patent?
A patent safeguards an original invention for a certain period of time and is granted by the United States Patent and Trademark Office (USPTO). By granting the right to produce a product without fear of competition for the duration of the patent, incentive is provided for companies or individuals to continue developing innovative new products or services.
There are three types of patents: utility patents, plant patents, and design patents.
A utility patent covers the creation of a new or improved product, process, or machine. Also known as a “patent for invention,” it bars other individuals or companies from making, using, or selling the creation without consent. Utility patents are good for up to 20 years after the patent application is filed, but require the holder to pay regularly scheduled maintenance fees.
While most people associate patents with machines and appliances, they can also apply to software, business processes, and chemical formulations such as in pharmaceutical products.
A plant patent protects a new and unique plant’s key characteristics from being copied, sold, or used by others. It is also good for 20 years after the application is filed. The plant must be asexually reproducible with reproduction being genetically identical to the original and performed through methods such as root cuttings, bulbs, division, or grafting and budding.
A design patent, on the other hand, applies to the unique look of a manufactured item. Take, for example, an automobile with a distinctive hood or headlight shape. These visual elements are part of the car’s identity and may add to its value. However, without protecting these components with a patent, competitors could potentially copy them without legal consequences.
Design patents issued since May 2015 last for 15 years from the date the patent is granted and do not require maintenance fees. Patents issued prior to that last for 14 years. (For more information, see Protecting Your Idea: Should You Patent It?)
What Is a Trademark?
Unlike patents, a trademark protects words and design elements that identify the source of a product. Brand names and corporate logos are primary examples. A service mark is similar, except that it safeguards the provider of a service instead of a tangible good. The term “trademark” is often used in reference to both designations.
Some examples of trademark infringement are fairly straightforward. You’ll probably run into trouble if you try to bottle a beverage and call it Coca-Cola – or even use the famous wave from its logo – since both have been protected for decades.
However, a trademark actually goes a bit further, prohibiting any marks that have a “likelihood of confusion” with an existing one. Therefore, a business can’t use a symbol or brand name if it looks similar, sounds similar or has a similar meaning to one that’s already on the books – at least if the products or services are related. If the trademark holder believes there’s a violation of these rights, it may decide to sue.
What Is a Copyright?
Copyrights protect “works of authorship,” such as writings, art, architecture, and music. For as long as the copyright is in effect, the copyright owner has the sole right to display, share, perform, or license the material. One notable exception is the “fair use” doctrine, which allows some degree of distribution of copyrighted material for scholarly, educational or news-reporting purposes.
Technically, you don’t have to file for a copyright to have the piece of work protected. It’s considered yours once your ideas are translated into a tangible form, such as a book, music, or published research. However, officially registering with the U.S. Copyright Office before – or within five years of – publishing your work makes it a lot easier to establish that you were the original author if you ever have to go to court.
The duration of a copyright depends on the year it was created, as the laws have changed over the years. Since 1978, most compositions have been copyright-protected for 70 years after the author’s death. After that time, individual works enter the public domain and can be reproduced by anyone without permission.
As a general rule, the author retains ownership of copyright privileges, even if the material is published by another company. There is an important exception to this rule, though. Materials you create for your employer as part of your job requirements – for example, contributions to a podcast the company publishes – are usually considered "works for hire." The employer, not you, retains the copyright. If there’s a gray area, you can try to negotiate with the publisher over copyright ownership prior to creating the piece – just be sure to get it in writing. (For more, see Things You Didn't Know You Could Copyright.)
The Bottom Line
The decision to pursue a patent, trademark, or copyright depends on the type of intellectual property you’re trying to shield. Whether it’s a new product, logo, or creative work, registering your idea with the appropriate body can help ensure you enjoy the fruits of your labor.