Patents vs. Trademarks: Understanding the Differences

Three types of property are known. These are real property, personal property, and intellectual property. That which is owned as real property or personal property can be seen and touched. What is owned as intellectual property can only be described in words on paper. For example, a book is an item of personal property that can be owned. The right to reproduce the book is intellectual property.

Five types of intellectual property are recognized: patents, trademarks (including service marks), trade names, copyright, and trade secrets. Here, we will discuss two of the five types – patents and trademarks – in detail to help you understand the differences between each one, as well as the differences in securing their protection.

TYPES OF PATENTS

There are several different types of patents, and each type applies to a specific class of invention, has specific requirements for filing that type of patent application, and offers a specific duration of protection.

• Utility Patents. Most patents that are applied for and granted are utility patents. Utility patents are granted for inventions that are useful, new, and nonobvious. The invention must be directed to a process, machine, manufacture, or composition of matter. It must also be novel and nonobvious to a person of ordinary skill in the art to be patentable. Utility patents offer protection for 20 years from the application filing date.

• Design Patents. A patent can be obtained on a specific design of something if the design is new and original. The design must be ornamental in nature, non-functional, and on a manufactured device. Design patents issued on applications filed on or after May 13, 2015, offer protection for 15 years from issuance, while those filed on applications filed before May 13, 2015, offer protection for 14 years.

• Plant Patents. Under 35 USC 161, it is possible to obtain patent protection on a new type of plant. The plant must asexually reproduce and must be a distinct and new variety. Tuber-propagated plants or plants found in an uncultivated state are excluded from patentability. To apply for a plant patent, an applicant must provide a complete description of the new plant and may provide a color photograph if the coloring is relevant to the novelty of the plant. Plant patents offer protection for 20 years from the application filing date.

• Applying For A Patent. For each type of patent, specific requirements must be satisfied when applying, as discussed above. Additionally, prosecution with the U.S. Patent Office associated with each type of patent is specific to the type of patent being sought. A patent attorney is familiar with patent prosecution before the Patent Office and can help you apply for the protection you need.

TYPES OF TRADEMARKS

A word, phrase, symbol, or logo (i.e., a mark) that represents a good or service can be a form of intellectual property if used to identify, brand, or distinguish the good or service as being provided by a particular business. When the mark represents or signifies a product or good, it is called a trademark; when the mark represents or signifies a service, it is called a servicemark.

A mark is a symbol of a product or service, and consumers of that product or service come to associate a certain level of quality with the mark. Over time, goodwill develops in the mark, and consumers learn to associate that distinctive mark with a specific good or service. Trademarks and servicemarks are useful forms of intellectual property because they protect against others using a mark for their own commercial gain. Trademark or servicemark protection prevents others from unfairly adopting a known mark to exploit the goodwill associated with it to confuse customers into thinking that they are buying a good or service that they trust.

• Trademarks. Trademarks specifically identify a good, a product, or even a product line. Examples of products include household cleaning implements, coffee makers, shoes, jewelry, certain foods and beverages, tools, and automobiles. Contact a trusted trademark lawyer to learn more about the importance of this.

• Servicemarks. Servicemarks specifically designate services. For example, house cleaning services, taxi services, delivery services, accounting services, and restaurant services are all types of services that can have iconic servicemarks associated with their brand of services.

• Protecting Marks. To establish rights in a trademark or servicemark, the owner of the mark needs to use and assert their right in the specific mark. To do this with a product, the name or logo of the product should be accompanied by a small ™. To do this with a service, the name or logo of the service should be accompanied by a small SM. No state or federal registration is required to use the ™ and SM designations.

Trademarks and servicemarks can be given federal protection when a patent or trademark lawyer (or anyone knowledgeable and capable) registers them with the United States Patent and Trademark Office. Federal registration of a mark allows the owner of a trademark or servicemark to use the symbol ®, and makes it illegal for any other business to use the mark when selling a similar good or service. Using a designation such as SM, ™ or ® lets the world know that you mean business when it comes to protecting your intellectual property rights in your company’s marks.

Protect Your Intellectual Property with Us Now!

So, do you have an invention or trademark you need help protecting? Parsons and Goltry, PLLC, a trusted patent and trademark lawyer, can help!

With an experienced patent and trademark lawyer by your side, you can have the peace of mind that your intellectual property is in good hands. So get in touch with us now to discuss how we can help you!