If you create intellectual property (IP), protecting it may enable you to share that creation with others without worrying they will try to claim it for themselves. But how do you know whether to apply for a copyright, a trademark, or a patent? Usually, the thing you want to protect determines whether to pursue a patent vs a trademark vs a copyright. Patents protect inventions, trademarks protect marks used in business, and copyrights protect original creative works.
Determining the right form of intellectual property is often the first step in protecting your competitive advantage. An intellectual property attorney helps you identify which protections apply to your business and develop a strategy as your portfolio grows. Jones IP Law’s intellectual property attorney helps inventors, entrepreneurs, startups, and established businesses identify the right strategy for protecting their innovations and brands.
What Is Intellectual Property?
Intellectual property (IP) protects creations of the mind, such as inventions, brands, and creative works. Intellectual property law allows people and businesses to prevent others from using or benefiting from their property without permission.
Copyrights, trademarks, and patents are the most common types of intellectual property. Although they all protect intellectual property, those protections apply to different types of assets and arise in different ways.
What Is a Patent?
A patent is a form of intellectual property that protects inventions. The U.S. Patent and Trademark Office (USPTO) offers three types of patents:
- Utility patents—protect new and useful machines, manufacturing processes, articles of manufacture, chemical compositions, and improvements to existing inventions;
- Design patents—protect the ornamental appearance of a product; and
- Plant patents—protect certain new plant varieties that reproduce asexually.
Utility patents account for the vast majority of patents issued by the USPTO. Yet, some products may qualify for more than one type of patent. For example, a company might obtain a utility patent covering how a product works and a design patent covering its ornamental appearance.
To be patentable, an invention must be:
- New—not already disclosed in prior art;
- Useful—has a practical purpose; and
- Non-obvious—the differences between the invention and earlier technology represent more than a routine or predictable modification.
When comparing your invention to prior art, the patent examiner reviews earlier patents, publications, and other public disclosures to determine whether the invention is new and whether it would have been obvious in light of existing technology.
What Is a Trademark?
A trademark protects a mark you use to identify your business’s goods or services and distinguish them from others. A mark may be:
- A business name,
- Product name,
- Logo,
- Slogan,
- Symbol, or
- A combination.
You gain trademark rights when you use your mark with your goods or services in commerce. Registering your trademark provides additional legal protections and expands your ability to enforce your rights nationwide.
When you apply to register a trademark, a USPTO attorney reviews your application to determine whether your mark is registrable. As part of that review, the examining attorney considers whether your mark is distinctive or too similar to an existing trademark.
A mark is more likely to be distinctive if it is fanciful, arbitrary, or suggestive. Fanciful marks use invented words, arbitrary marks use existing words in unrelated ways, and suggestive marks hint at qualities without directly describing them. By contrast, descriptive marks describe a feature of the goods or services and may require proof that consumers associate the mark with one business. Generic terms name the goods or services themselves and are generally not registrable.
What Is a Copyright?
Copyright protects many different types of original creative works that their author fixes in a tangible medium of expression, including:
- Literary works,
- Musical works,
- Photographs,
- Paintings and illustrations,
- Software code,
- Motion pictures, and
- Website content.
You generally obtain copyright protection automatically when you create an original work and tangibly record it, such as writing it, photographing it, recording it, or saving it as a digital file.
Although your rights arise when you create the work, registering your work with the U.S. Copyright Office expands your ability to enforce your rights in court. If another person copies, distributes, publicly displays, performs, or adapts your work without permission, you may enforce your copyright by asking a court to compel the infringer to stop or pay you damages. You may also license your copyright to others, allowing them to use your work under agreed terms while you retain copyright ownership.
Comparing Types of Intellectual Property: Patent vs. Trademark vs. Copyright
Understanding the differences between a patent, a trademark, and a copyright starts with recognizing what each protects. While the three types of intellectual property are similar, they reveal important IP differences:
| Patent | Trademark | Copyright | |
| What does it protect? | Inventions | Marks identifying goods or services | Original creative works |
| How do rights arise? | After the USPTO issues a patent | Through use in commerce | When you create the work and fix it in a tangible medium |
| How can you register it? | Through the USPTO | Through the USPTO | Through the U.S. Copyright Office |
| How long can protection last? | Limited statutory term | Potentially indefinitely with continued use and required maintenance | Limited statutory term |
Although each form of intellectual property works differently, they serve a similar purpose: they give you enforceable legal rights. If another person or business infringes those rights, you may ask a court to stop the infringement and, when appropriate, award monetary damages or other legal remedies. Many businesses own patents, trademarks, and copyrights because each protects a different aspect of the business.
Talk to Jones IP Law About Protecting Your Intellectual Property
Choosing the right intellectual property protection starts with understanding what you have created. Different types of intellectual property protect different things. An intellectual property attorney can evaluate what you have and what you can do with it. Jones IP Law helps inventors, entrepreneurs, and businesses identify and protect intellectual property.
Whether you are developing new technology in the Brooklyn Navy Yard, launching a consumer product from Industry City, or building a business in DUMBO, I can help you prepare various IP applications, develop long-term IP strategies, and protect valuable intellectual property. Contact us to learn more.
Legal References Used to Inform This Page
To ensure the accuracy and clarity of this page, we referenced official legal and other resources during the content development process:
- U.S. Copyright Office, What Is Copyright?
- USPTO, Patent Essentials.
- USPTO, Strong Trademarks.
- USPTO, What Is a Trademark?
