When business owners ask, “Can I trademark this?” they are often asking a broader question: Can I protect this as intellectual property? That question can apply to everything from a company name or logo to a new product, software program, written content, or creative work. While the terms “patent,” “trademark,” and “copyright” are sometimes used interchangeably, each protects a different type of intellectual property. Understanding the distinctions is an important first step in determining how to protect the intellectual property that is valuable to your business.
Patents: Protecting Inventions
Patents generally protect inventions and certain improvements to existing inventions. A utility patent can protect a new and useful process, machine, article of manufacture, composition of matter, or improvement of one of these. A patent gives its owner the right to exclude others from making, using, offering for sale, selling, or importing the patented invention in the United States. This right lasts for a limited period of time in exchange for public disclosure of the invention and is a right to exclude others, not necessarily a guarantee that the patent owner can practice the invention.
Other types of patents include design patents, which protect new, original, and ornamental designs, and plant patents, which protect certain distinct and new plant varieties that are asexually reproduced. Choosing the appropriate type of patent is an important part of protecting an innovation.
Not every idea or invention is eligible for patent protection. Mere ideas, laws of nature, naturally occurring substances, and mathematical formulas generally cannot be patented, and an invention must meet legal requirements such as novelty and non-obviousness.
Trademarks: Protecting Your Brand
While patents protect inventions, trademarks protect the words, phrases, symbols, designs, and other identifiers that distinguish a business and its goods or services in the marketplace. They help consumers recognize the source of goods or services and allow businesses to distinguish themselves from competitors.
Trademark rights can arise through their use in commerce, even without registration. These common law trademark rights are geographically limited. Federal trademark registration provides broader protection and can establish rights throughout the United States and its territories.
Protection is not limited to traditional names and logos. In some circumstances, sounds, colors, and other nontraditional identifiers can also function as trademarks. For example, the distinctive MGM lion’s roar, the Pillsbury Doughboy, and Tiffany blue have all received trademark protection.
Trademark infringement is a form of unfair competition. Federal trademark law generally protects against unauthorized use of the same or a confusingly similar mark in connection with the same or related goods or services when that use is likely to cause confusion about their source.
Copyrights: Protecting Creative Works
Copyright protects original works of authorship, including artistic, literary, and creative works such as:
- Literary, musical, and dramatic works
- Pantomimes and choreographic works
- Pictorial, graphic, and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Computer programs
- Certain architectural works
- Compilations and derivative works
Unlike patents, copyright protection generally arises automatically when an original work is created and fixed in a tangible form. For example, a songwriter generally obtains copyright protection when an original song is recorded, while an author obtains protection when an original work is written down.
That means registration is not required for copyright protection to exist. However, registering a work with the U.S. Copyright Office provides important advantages and, in general, is required before the copyright owner can bring an infringement action involving a U.S. work. Registration can also provide access to certain statutory damages and attorneys’ fees when applicable requirements are met.
Copyright protects the expression of an idea, not the idea itself, and a work must contain sufficient originality to qualify for copyright protection. A basic shape, common phrase, or other work lacking the necessary originality may not qualify.
Which Type of Intellectual Property Protection Do I Need?
There is no one-size-fits-all form of intellectual property protection. A business may have a logo protected by trademark, proprietary technology protected by a patent, and original website content protected by copyright. In some cases, the same asset may qualify for more than one form of protection.
Different forms of intellectual property can protect different aspects of the same product or property. For example, an iPhone’s design may be protected by design patents, while the Apple name and logo are protected as trademarks. Similarly, Toy Story demonstrates how trademarks and copyrights serve different purposes: the name and associated branding can function as trademarks, while the films, artwork, and other creative works may be protected by copyright.
For that reason, intellectual property protection should be considered as part of a broader business strategy rather than as a single decision about if something can be “trademarked.” Identifying the intellectual property your business owns, understanding available protections, and taking the steps to preserve those rights can help protect some of your business’s most valuable assets.
For more information, or to seek counsel from our Intellectual Property practice group, please reach out to request a consultation or call us at 216-696-1422.
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The information contained in this blog post is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.
