What is the Difference between a Trademark, Copyright and Patent?

March 19th, 2012

MARK TRADEMAN, TMIN NEWS ANCHOR:
Hello everyone. And welcome to the Trademark Information Network. I’m Mark Trademan, alongside Sandhya Mahajan, our investigative reporter, and Grant Gainsworth, our Senior News Analyst.

Here at the network, we are dedicated to bringing you the most up-to-date information that will help you apply to register your trademark and, if successful, keep that registration alive. Hope you’ll stay with us throughout the news cycle.

Now, Sandhya, I understand you have a report to start us off.  A bit of a coup, I hear?

SANDHYA MAHAJAN, TMIN INVESTIGATIVE REPORTER:
Well, something like that, Mark.  One of the first questions that’s always asked is, “What exactly is a trademark?”  And “How is that different from a patent?  Or a copyright?”

To answer that question, I thought we’d go straight to the source.  With me, via satellite, is the Undersecretary of Commerce for Intellectual Property and the Director of the United States Patent and Trademark Office, as well as the Deputy Undersecretary and Deputy Director.

Hello to you both and welcome to the program.

DAVID KAPPOS, DIRECTOR OF THE USPTO:
Well, thanks, Sandhya.

TERESA REA, DEPUTY DIRECTOR OF THE USPTO:
Happy to be here.

MAHAJAN:
Director, let’s begin with you.  So, what exactly are patents and trademarks and copyrights?

KAPPOS:
Well, patents, trademarks, and copyrights are all types of intellectual property.  They’re often confused, but each one protects a distinct property right.

MAHAJAN:
Such as?

KAPPOS:
Well, patents are technical and scientific; they protect inventions, like machines and ways of manufacturing.  Trademarks are business-oriented and protect brand names and slogans and logos.  Copyrights are often entertainment-oriented and protect artistic works, like books and movies, paintings and music.

MAHAJAN:
Can you give us an example of the differences between them?

KAPPOS:
Well, sure.  Let’s say you have invented a new kind of vacuum cleaner.  You’d get a patent to protect the invention itself.  You’d 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.

MAHAJAN:
Interesting.  And you protect all three at the Office?

KAPPOS:
We don’t actually.  Although all intellectual property is protected by the Constitution, Congress has determined that our office only handles patents and trademarks.  Copyrights are registered through the U.S. Copyright Office.

MAHAJAN:
I see.  Now, Deputy Director, how do you get a patent or a trademark registration?  Do you just fill out a form, pay a fee, and you’re all set?

REA:
Well, sometimes applicants wish that it was that easy, but the process is actually a bit more complex.

MAHAJAN:
How so?

REA:
Well, the law requires that patent and trademark applications must be examined before they can be approved.  On the patent side, for example, an invention must be new, useful, and non-obvious.  So, our examiners take the time to make sure each application meets that test.

MAHAJAN:
And what about on the trademark side?

REA:
On the trademark side, the examining attorneys make sure the mark complies with all of the legal requirements for registration of a trademark: for example, that the mark isn’t descriptive, generic, or likely to cause confusion with any other registered marks.

MAHAJAN:
Sounds like that can take some time.

REA:
It does, but the examination process is critical to fostering innovation and competitiveness in the marketplace.

KAPPOS:
Which is part of our mission.  We are dedicated to providing timely and high quality examination of patent and trademark applications.  So, not only do we grant patents and register trademarks, but our examination process gives a layer of protection to those trademarks and patented inventions that are already on the books.

REA:
All while providing the best customer service possible.

KAPPOS:
Well, exactly.  You might not always get your patent or register your trademark, but our goal is make sure the process is conducted in a courteous and professional manner from beginning to end.

MAHAJAN:
So, no guarantees, huh?

KAPPOS:
Nope.  Sorry!

REA:
But, if I could, I think this is an important point.  Applying for a patent or a trademark is, actually, a legal proceeding.  So, it’s understandable that the process can take some time to resolve itself.

KAPPOS:
Very true.  And I should also point out that we take that process, and our applicants’ experience with it, very seriously.  We are constantly working to make the process more efficient and user-friendly so that our applicants can get back to doing what they do best: which is inventing, innovating, and driving our country forward.

MAHAJAN:
Well, I know our viewers will be happy to hear it.

REA:
It’s a top priority!

KAPPOS:
No doubt about it.

MAHAJAN:
Thank you both for being with us.  Appreciate your time.

KAPPOS:
Anytime, Sandhya.

REA:
My pleasure.

MAHAJAN:
There you have it, Mark.  A breakdown of intellectual property from the folks who know it best.

TRADEMAN:
Excellent work, Sandhya.  Thanks for that.

Now, here at the Trademark Information Network, our mission is to help you save time and money when applying for your federal trademark registration.  So, to that end, and to help us delve a little deeper into what a trademark is and why you would want to protect one, we turn now to this report, filed by our Senior News Analyst, Grant Gainsworth.

GRANT GAINSWORTH: TMIN SENIOR NEWS ANALYST:
Ancient stone seals.  Ceramic pots.  Clay bricks.  Crumbling now, but still forming the solid foundation of modern trademark law.

From the time that humans began to roam the Earth, people have used marks to indicate the maker or producer of goods.  Egyptians, Greeks, and Romans, for example, all used marks to indicate who made particular bricks and ceramics.  And, in the case of the Romans, who was to blame should the brickwork fail…

Though the uses of trademarks, and their complexity and design, have evolved, the central meaning of trademarks has remained the same: trademarks indicate source.

What does that mean?  Well, to answer that, let’s take a look at what a trademark is.  Essentially, a trademark is any word, letter, number, design, or combination of those, that identifies one party as the source of particular goods and services.

Makes sense, right?  When you see a logo on a digital camera, or a bunch of bananas, or a pair of jeans, you know who made or produced those goods.  You use the logo to distinguish the goods you want from the goods made or produced by a competing brand.

Which explains why trademarks are so important.  Over time, trademarks gain reputations.  Sometimes good; sometimes bad.  But consumers come to expect a certain level of quality based upon that reputation, which then drives their purchasing decisions.

So the question then becomes: “How do I get a trademark?” and “How do I protect it?”  For answers, I sat down with the USPTO Commissioner for Trademarks.

So, Commissioner, how do you get a trademark?

DEBBIE COHN, COMMISSIONER FOR TRADEMARKS:
That’s a great question, Grant, and it brings up a fairly common misconception.  There’s a difference between using or “getting” a trademark and owning a federal registration for that trademark.

GAINSWORTH:
And what’s that?

COHN:
Well, anytime you use a word, a letter, a number, a design, or a combination of those, to indicate the source of goods or services, that’s a trademark or service mark.  In legal parlance, we call that a “common law” mark.  You see a “TM” or an “SM” next to a mark sometimes, indicating that the company considers that to be their trademark or service mark, but hasn’t yet federally registered it.

GAINSWORTH:
OK…

COHN:
That’s in contrast with federally registering a trademark, which means that, not only are you using the mark in interstate commerce, but you have federally registered it with the USPTO and can use the “R in the circle” symbol after the mark.

GAINSWORTH:
So you’re saying that a person can have and use a trademark without registering it with the USPTO.

COHN:
That’s right.  There’s no requirement that you register your mark with us, or with your state, but you miss out on powerful rights and significant protection for your mark.

GAINSWORTH:
What types of rights and protection are you talking about?

COHN:
Well, there are a whole host of them.  Perhaps the greatest asset, however, is nationwide protection.  Getting a federal registration means you put the public on notice, throughout the country and U.S. territories, that you have exclusive rights to use that mark.  In addition, getting a federal registration creates a legal presumption that you have that exclusive right.  And, should you encounter unauthorized use of your mark by another party, you can sue that party in federal court.  Those are pretty powerful tools.  Plus, you can use your registration as a basis for registering your mark in a foreign country and to stop infringing goods from entering this country.

GAINSWORTH:
Not to mention using the “R in the circle” symbol, right?

COHN:
That’s right.

GAINSWORTH:
Now, does the USPTO enforce and defend trademark rights?

COHN:
We don’t, actually; that duty belongs to the individual trademark owner.  But registration does provide a sort-of “automatic” layer of protection: if you have a live federal registration and someone else tries to register a confusingly similar mark on related goods or services, their mark should be refused registration.  It’s all part of the thorough examination process the Office performs on every application.  So, while we don’t “defend” your mark, per se, the registration process itself does provide a basic level of protection.

GAINSWORTH:
Good to know!  Thank you very much, Commissioner, for taking the time to talk with us.  I know our viewers appreciate it.

COHN:
You’re very welcome, Grant!  Anytime…

GAINSWORTH:
So, remember, folks: a trademark can be any word, letter, number, design, or combination of those, that indicates the source of particular goods and services.  Federal registration of your mark is not required, but it does grant you a powerful set of rights that you can use to protect your mark.  Rights that ancient brickmakers in Rome never would have dreamed of…

Grant Gainsworth, Trademark Information Network.

TRADEMAN:
Thank you, Grant.  Fascinating stuff.

And that’s about all the time we have for this broadcast, ladies and gentlemen.  But don’t worry.  There are plenty more broadcasts throughout the website, all designed to help you with the registration process: from searching for conflicting marks to filing an application to keeping your registration up to date.

And be sure to check out all the other information found on the USPTO website.  There are Basic Facts about Trademarks, News and Notices, Manuals and Guides, not to mention electronic resources that will help you search, file, and maintain your valuable trademark registration.

For Sandhya Mahajan and Grant Gainsworth, I’m Mark Trademan, Trademark Information Network.  Thanks for joining us.

====================TRANSCRIPT ENDS====================

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2 Responses to “What is the Difference between a Trademark, Copyright and Patent?”

  1. Copyright law is almost completely different than trademark law or patent law. All too often, people use the terms copyright, trademark and patent interchangeably. Under intellectual property law, copyrights, trademarks and patents are totally different things. A trademark protection name or brand. A copyright protects an original work of authorship. A patent protection invention or idea.

  2. copyright law firms are often different than trademark law firms. Copyright was different than trademark law in many respects. Some copyright law firms also practice trademark law and vice versa. It is a copyright and trademark lawyer, I hear clients all the time confuse copyright and trademark issues, as well as patent issues. They want to copyright the name of their company when they really mean they want to trademark the name of the company. They want to trademark their website when they really want to copyright protect their website. Understanding the different string copyright and trademark laws is critical. Select the law firm that knows the difference.

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