Copyrights, trademarks and patents are confusing. All three are registered with an agency of the federal government. Each is often referred to as “intellectual property.” When someone uses a copyright or patent or trademark without permission, we talk about “infringement.” Most importantly, each one gives the owner exclusive rights to the work, meaning the owner has the right to prevent anyone else from using their work. What exactly is the difference between these three forms of intellectual property protection?

A copyright protects the expression of a person’s ideas. Copyright protection is given to creative works like writing, computer programs, music, lyrics, graphic designs, sculpture, photographs, movies and sound recordings. The expression must be “original” which, in this context, means a work that is not an exact copy of another work.

Patents protect inventions. In order to qualify for a patent, an invention must be novel, which means that it is something that is different in an important way from all previous inventions. The invention must also be useful—not necessarily important, but it must have some use—and it must also be non-obvious. Non-obvious means that someone who understands the technical area of the invention would see the invention as a surprising and significant development in the field.

A trademark protects something that is used to identify where a product or a service comes from. A trademark describes something and is not the thing being described. An example of a trademark would be a corporate identity, such as a logo, which is placed on products to inform consumers that the product came from that particular company.

Consider this example: suppose you are boating down a river and find it difficult to get your boat over the shallow spots. You give the matter some thought, and come up with a machine that will lift boats over the shallow spots. You could get a patent to protect your rights to your invention. Later you decide to market your invention as the “Jones Lift-a-Boat.” The name “Jones Lift-a-Boat” can be a trademark. If you make a DVD that you include with each purchase, called “Getting the Most from Your Lift-a-Boat”, that DVD is protected by copyright.

There are other important differences between patents, trademarks, and copyrights. Copyrights and patents are creatures of federal law. Copyrights are registered with the Library of Congress, while patents are registered with the Patent and Trademark Office. Trademarks are not necessarily federal matters. There is a federal trademark law, and there are also tradename laws in each state.

Copyright is automatic. As soon as you create a work, you have copyright protection. Registration is necessary in order to protect your copyright, but the registration is not what creates the copyright. So long as you put an encircled C your name and year of creation on the material, it is covered under copyright law.

Trademarks and patents come into being only when you register them and your registration is approved. The approval is not automatic.

One of the most important differences between patents, trademarks, and copyrights is that patents and copyrights will expire. As a general rule, copyrights for your new work will last for your life, plus an additional twenty-eight years. A patent will last for seventeen years after your registration for the patent. Once copyrights or patents expire, they cannot be revived.

Trademarks are issued for a definite period of time, but can (in the proper circumstances) be renewed. In theory, a trademark could last forever.

Overlap between copyright, trademark and patent protection

There can be some overlap between the three, especially between copyright and trademark. If you paint a picture, that picture is protected by copyright. What if someone sees your picture, likes it, and wants to use it as a logo for a company they run? Now, that same picture could be a trademark. The picture’s status as a trademark does not affect its copyright status. Both protections will be there, and it is only a question of which protection you use to enforce your rights in the work. That, in turn, depends on how those rights are violated. If your picture is just copied, it’s a copyright infringement. If it’s used to sell a different product, it’s probably a trademark infringement as well.

Trade Secret Protection involves a contract between you and someone else, usually an employee. Many restaurants have recipes that are protected from their employees stealing by a trade secret contract being signed upon entering into the employment of that person.

Should you have a business or want to help protect an idea, call us for help. You'll be glad you did!