One of the most common questions (mistakes) I see is the confusion between the

differences and distinctions between a trademark, copyright, and patent. Please find

below a short explanation of how each one is distinguished from the others.

Trademark: A trademark can be any word, phrase, symbol, design, or a combination

of these things that identifies your goods or services. It's how customers recognize you

in the marketplace and distinguish you from your competitors. The word “trademark”

can refer to both trademarks and service marks. In short, it’s your “brand” and it’s how

your customers make decisions about whether to buy your product or services.

While it is not required to register your trademark with the US Patent & Trademark

Office (USPTO) there are a myriad of benefits that come with registration. If you intend

to enforce your mark it is a very cost-effective means of protecting your brand and could

save you hundreds of thousands of dollars in the event of litigation. Prior to registration

you should secure an opinion, from an experienced attorney, as to whether the mark

you have chosen is potentially infringing upon another’s mark; whether it functions as a

mark; and whether it can be registered.

Trademarks are governed by both Federal and State laws and suit can be brought in

either venue to enforce them. However, by obtaining a Federal Registration a Registrant

is entitled to a number of “short-cuts” and enhanced damages.

Copyright: First, a human being must have created the work. Selfies taken by a very

talented monkey or paintings by an artistic elephant aren’t eligible. Similarly, a work

produced by a machine without any creative input or intervention from a human author

doesn’t qualify.

Second, the work must be an independently created original work of authorship. This

means that an author can’t copy someone else’s work and claim it as their own. But if

two authors create similar works without ever knowing of the other’s work, copyright

protects both.

Third, a work must possess a minimum degree of creativity to successfully claim

copyright. A basic or routine expression lacking a creative spark, such as a telephone

directory with names and numbers listed alphabetically, is not enough for copyright —

no matter how much effort it took to compile.

And fourth, the work must be fixed in a tangible medium of expression, meaning it has

been captured in a sufficiently permanent medium that can be perceived, reproduced or

communicated for more than a short time. If an individual walks around singing a

spontaneously created song but then doesn’t write it down or record it, copyright can’t

protect it.

In order to bring suit in the USA to enforce a copyright, the work MUST be registered

(or in process of registration) with the US Copyright Office. It is solely a matter of

Federal Law per the US Constitution, and no State Court has jurisdiction over

Copyrights.

Patent: A patent for an invention is the grant of a property right to the inventor, issued by the

United States Patent and Trademark Office. Generally, the term of a new patent is 20

years from the date on which the application for the patent was filed in the United

States. U.S. patent grants are effective only within the United States, U.S. territories,

and U.S. possessions

The right conferred by the patent grant is “the right to exclude others from making,

using, offering for sale, or selling” the invention in the United States or “importing” the

invention into the United States. What is granted is not the right to make, use, offer for

sale, sell or import, but the right to exclude others from making, using, offering for sale,

selling or importing the invention.

There are three types of patents:

1) Utility patents may be granted to anyone who invents or discovers any new and useful

process, machine, article of manufacture, or composition of matter, or any new and

useful improvement thereof;

2) Design patents may be granted to anyone who invents a new, original, and

ornamental design for an article of manufacture; and

3) Plant patents may be granted to anyone who invents or discovers and asexually

reproduces any distinct and new variety of plant.\

To ask questions, or for a free consultation, please contact “The Branding Lawyer” at

[email protected] and check out my simple web page at

www.thebrandinglawyer.com. Please identify yourself as a reader of Natural Awakenings

in your communications.