How is a trademark different from a patent?

It is not uncommon for new inventors to ask questions about the type of protection they should seek with a new idea or invention.  Here is some basic information on the types of protections you may consider.

An Intellectual Property Right (IPR) is a right given to a person over the creation of their intellect or mind. IPRs include patents, trademarks and copyrights, and are governed by the US Patent and Trademark Office (USPTO).

For starters, the United States operates as a “First to File” patent system, which means that rather than the Patent Office granting a patent to the first person to invent something, it goes to the person who files the patent application first.  This puts a higher sense of urgency on inventors to file for patent protection sooner rather than later to secure future rights to the idea.  The United States did not always operate with such a system.   Prior to 2013 the US operated as a “First to Invent” system, which meant that through proper documentation, inventors could secure rights prior to actually filing an application.

Patenting

According to the USPTO, the definition of a patent is the grant of a property right to an inventor.  A property right is “the right to exclude others from making, using, offering for sale or selling” the invention in the United States, and importing the invention into the United States. There are several types of patents.

Utility Patent

A utility patent will be one that’s given to a machine, a process, a mechanism, or composition of matter that is not obvious and does not resemble prior inventions – called prior art – too much.  Once approved, utility patents last 20 years from the initial filing of the patent, and will stay active as long as the inventor keeps up with associated fee payment schedules.

Design Patent

A design patent differs from a utility patent in that it is issued for an original, ornamental design for an existing product, and doesn’t require the product to have new functionality.  Design patents last 14 years from the initial filing and do not require continual fees to be paid.

Provisional Patent Application

Another USPTO filing that has become very popular since its inception in 1995 is the Provisional Patent Application. This application was specifically designed to provide protection for inventors while they develop and/or begin to market their ideas in the early stages. The provisional patent is good for one year from the filing date and allows the term “patent pending” to be applied to the invention. The filing date of the provisional patent will establish the “first to file” date for the nonprovisional patent that the inventor will later file.

In general, an inventor will typically apply for patent protection prior to marketing their product.  This will provide protection while the invention is developed and / or marketed to companies.

Trademarking

A trademark is typically a symbol, word, phrase or design that clearly identifies the source of goods.  A service mark is the same as a trademark but it focuses on the source of a service rather than goods.  For example, if your company offers services you may want to protect the name of your company with a service mark.  However, if you have a new invention idea for a product and have given that product a name you might decide to protect that name with a trademark. Trademarks exist on just about any common item that can be purchased in a store, and are often used to build a brand or reputation for the group that owns the trademark. When a trademark is filed with the USPTO, a picture of the trademark that will be used in advertising must accompany the application.

You cannot expect the same type of protection from a trademark as you can from a patent.  A trademark typically protects brand names and logos used on goods and service and a patent protects the actual invention (not the name or logo). Those who attempt to acquire what is known as a federal trademark registration under the United States Patent and Trademark Office are given an array of choices of different types of marks. An applicant may choose from a character mark or some kind of special form mark.

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