Tips from the Trademark Insider: How Do I Know If I Need a Patent, Trademark, or Copyright?

Step 1: Understand What Patents, Trademarks, and Copyrights Are.

A patent is a a property right granted by the government to an inventor to exclude others from making, using, offering for sale, or selling the invention throughout the country or importing the invention into the country for a limited time in exchange for public disclosure of the invention when the patent is granted.

A trademark protect words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods. In short, trademarks are your brand. Trademarks, unlike patents and copyrights, can be renewed forever as long as they are being used in commerce.

A copyright protects original works of authorship, such as writings, music, software code, and works of art that have been tangibly expressed. The Library of Congress registers copyrights which last for the life of the author plus 70 years.

Step 2: Determine What You Need to Protect.

What is it that you are trying to protect? The name of your business? Then you need a Trademark Registration. A new invention that allows cars to run on water and the exhaust is oxygen? You need a patent. A new song you have written and you want to make sure it is protected before pitching it to the music industry. You need a Copyright Registration.

In short, if you are trying to protect your name, business slogan, logo, or other ways consumers identify you or your business you need a trademark and a Trademark Registration. The brands Coca Cola®, Microsoft®, McDonalds® are all examples of registered trademarks.

If you have a new invention that will change the world or even an improvement upon existing technology you need a patent. Historical patents of note: (1) the cotton gin; (2) the electric motor; (3) the ice machine; (4) an improvement upon the existing telegraph machine; (5) the phonograph (aka record player); (6) the light bulb; (7) the calculator; (8) the airplane; and (9) sliced bread!

If you have written a song, code for software, a book, have made a cartoon character, or really anything else that can be deemed "an original work of artistic expression" you need a copyright registration. Examples of matters protected by U.S. Copyright Laws: (1) Microsoft's code for Windows 7; (2) The Da Vinci Code by Dan Brown (Book); (3) The Da Vinci Code (Movie) starring Tom Hanks; (4) all NFL broadcasts.

Step 3: Understand Sometimes You Need to Protect More than One Form of Intellectual Property.


Some things, however, cross-over between the various forms of protection. As such, in some instances you may need more than one form of protection. Some examples are:

Bands

Bands should seek a Trademark Registration for their band's name but also register copyrights for their songs and lyrics.

Books

In authoring a series of books the author should register both the common name of the series as a trademark (e.g., Star Wars, Star Trek) as well as seek copyright protection for the manuscripts of the books themselves.

Clothing

Clothing has some very specific guidelines that manufacturers must be aware of. Generally speaking copyrights and trademarks will be most applicable to clothing, however it is possible that patents could play a role as well.

If you are seeking to register the brand name of the clothing (e.g., Polo, Izod, etc.) these would be protected by a Trademark Registration. The best rule of thumb to think about here is where is the trademark going to appear? If it is the mark that will appear on the tag of the clothing a Trademark Registration is what you need.

However, there is an interesting interplay between copyrights and trademarks in regard to clothing. Recall, trademarks are only designed to let people know who made the shirt (e.g., the little horse for Polo, the crocodile for Izod). But the larger the design or matter sought to be protected, the more likely it would receive what is known as an ornamental refusal from the trademark office and should, instead, be protected by a copyright as an original design. It also depends on where the design appears.

If the design only appears on the label of the clothing, it is a trademark. If it appears on say the front of a shirt, it is a trademark if people will see it and think "Hey, that's a Polo." It is a design and should be copyrighted if people see the design and see it only as a design and have no idea who made the shirt (i.e., a big yellow smiley face on the front of your shirt is the classic example).

Lastly, patents can come into play here. If you event a new and improved zipper or something to that effect patent protection is definitely possible.

Software

Software is tricky. Software often involves all three elements, patents, trademarks, as well as copyrights. For a new software program, a developer or company would seek a Trademark Registration for the brand name of the software (e.g., Windows 7), seek a copyright registration for the code, and possible seek patent protection for the code if the code is an improvement upon the prior art or is otherwise protectable by patent.

Websites

Generally speaking the overall look and feel of a web site as well as the content (i.e., writing and information thereon) can be protected as a copyright. Trademarks used on the web site can be protected by a Trademark Registration. Patents may also play a role if the web site features some new and innovative back ground element.

The Trademark Company