Trademark, Copyright or Patent?

Non-lawyers – and even many lawyers – are confused about what type of intellectual property protection is needed. You have something great . . . a software program, music, a name for your product or service, an invention or a logo. Do you apply for a patent? A copyright? A trademark? Something else? Let’s start with basics so you can understand what those words really mean.

Patents

Patents protect ideas or inventions. In other words, if you come up with a new gadget or a better way to manufacture something, that may be patentable. Ideas – as well as tangible items – can be patented. For example, new exercise routines can be patented. If your idea is novel, and no one else has done it quite that way before, you should consult a patent attorney to see if you can patent your idea.

Copyrights

While patents protect the idea itself, copyrights protect the expression of the idea. For example, a song is the expression of a musical idea, and so is copyrightable. Likewise, the text on a website or in a brochure describing your company’s services can be copyrighted. Any artwork – including logos, graphics, video and photographs – can be copyrighted.

Trademarks

While patents protect the ideas, and copyrights protect the expression of the ideas, trademarks protect the goodwill in a product or service. Specifically, trademarks protect the association in consumers’ minds between a company and its goods or services. For example, let’s say that Acme Corporation makes a popular soft drink called Fizz-Good. The important trademark isn’t Acme Corporation, because consumers don’t care about the company’s name in this example, they care about the name of their favorite soda. Fizz-Good is the brand name people know about, what they look for when they want that particular soda taste and experience.

Names are not the only things which can be trademarked. You can also trademark:

Logos

Designs

Slogans

Sounds

Colors

Smells

For example, a unique shape for a soda bottle might be entitled to trademark protection. And remember the “Intel Inside” commercial from the 1990’s? Remember the 5-note sound which played at the end of the commercials? That sound is trademarked as U.S. Trademark Registration Number 2315261 (described as “a five tone audio progression of the notes D FLAT, DFLAT, G, D FLAT and A FLAT.”) The musical sequence is entitled to trademark protection because consumers associate the music with the company Intel and its computer processors. Similarly, if a pharmaceutical company makes a drug with a unique color, the color may be trademarkable for use in that context. Even smells can be trademarked for an aftershave or perfume, for example.

Other Types of Intellectual Property

There are other types of intellectual property, including:

Trade secrets

In certain countries, “moral rights”

Other types

Experienced intellectual property lawyers can conduct an “intellectual property inventory” to determine what ideas, expressions and sources of goodwill you have, and then help you protect them.

Learn more about trademarks, copyrights, and other intellectual property