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Patents vs. trademarks

A friend of mine asked me a great question today: what’s the different between patents and trademarks?

Patents and trademarks are similar in that both are considered to be intellectual property (along with copyrights and trade secrets). Intellectual property, generally speaking, is a right the government grants to you in exchange for registration of an intangible property right. Intellectual property rights permit you to exclude others from using your intellectual property without your consent. Intellectual property is considered personal property, like a car, that can be sold or transferred through an estate.

There are distinct differences between the two. A patent deals with the invention of an apparatus or process. For a few examples from my practice, you could patent a new fishing yo-yo or a new boat pontoon, or you could patent a process for folding sheet metal or using computer software to manipulate data. A quick way to differentiate patents is to remember that they deal with manufacturing, either a product itself or a way to make the product. Patent rights arise ONLY from registration, and they expire 20 years after filing.

A trademark is a symbol that consumers use to identify the source of a product. So, consumers recognize the term COKE as a product made by a particular cola manufacturer. A quick way to differentiate trademarks is to remember that they deal with brands and marketing. Since trademark rights deal with consumer recognition, they necessarily arise ONLY from prior use, and they never expire as long as use continues. Registration just confers broader geographical rights as well as procedural and evidentiary benefits in legal proceedings.

Any given product can be covered by different types of intellectual property. For instance, a pontoon boat could have patented pontoons and a patented deck and still be protected by a  trademarked brand name.

Any business with valuable ideas, products, or brands should adopt a policy on how to secure and enforce intellectual property rights. Let us know if we can help.