You’ve likely heard the words trademark, patent, and copyright. Have you ever wondered what the difference is and if you will need any of these when you’re starting a business? We are going to break it down for you so you know exactly what they are and where to get started!
According to the United States Patent and Trademark Office (USPTO), “a trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods”. However, the word trademark is often used interchangeably. Basically, a trademark (or service mark) shows others that you and/or your business are the owner of the word, phrase symbol, or design. When others see it, they will be able to exclusively associate it with the service or goods you sell. (For simplicity in this article, we will use a business name as the sample item desired to be trademarked.)
What does this mean for my business? If you want your business name to be exclusively associated with your business throughout the US, you need to federally trademark it to protect your legal rights to ownership of the name and prevent others from using the same name. Under certain circumstances, another company could have the same name and both business will be able to federally trademark it. This will be determined by the USPTO and happens if it can be shown that the two businesses offer completely different types of products. (Example: One company sells hair care products and the other sells accounting software.) When starting a business and creating your business brand, you may want to check the USPTO trademark database to see if your desired names, phrases, etc. have already been trademarked by someone else. Should you decide to pursue federal trademark registration, the forms will also be found on this site. Although it’s not necessary, you may find hiring a lawyer to be worthwhile!
Will my business name be protected if I don’t get it trademarked? If you form a business entity and register your business with the state, the state will not let other businesses that have the same name to register their business. This is only for state level protection. Registering to “Do Business As” (DBA) with your state can also provide protection within your state for your business should you choose not to form a business entity. The process for completing a DBA varies state-to-state. Check with your Secretary of State or a lawyer for more information.
What are the benefits of obtaining a federal trademark registration? When you obtain a federal trademark registration, you have some of the benefits listed below.*
- You can legally use the ® symbol. You are not allowed to use this symbol unless you have successfully gone through the process to achieve federal trademark registration. You can then show off your registered name on shirts, signs, and in your email marketing!
- Using the ® symbol indicates to others that you have legal rights to that name, phrase, symbol, design, etc. (for your particular business industry) and it is exclusively yours. Having this symbol can be a deterrent to individuals and/or businesses that may want to use one of your trademarked item(s).
- Your trademarked name, phrase, etc. will be in the United States Patent and Trademark Office database. Anyone can search the database and see the name(s) you have successfully trademarked. This would be helpful for others to know when starting their own business in order to “stay away” from trademarked items if necessary when creating their business name or brand.
- You can bring legal action against someone for using your federally trademarked name.
- If you want to apply for a trademark in other countries, having a registered trademark in place will be beneficial.
What is a patent? Whereas registered trademarks are used to identify associations with your business such as a name, symbol, phrase, etc., a patent grants property rights of an inventor to his/her invention. The process of obtaining one of the three types of patents (utility patent, design patent, or plant patent) is also done through the United States Patent and Trademark Office. According to the USPTO, having a patent allows the inventor, “the right to EXCLUDE others from making, using, offering for sale, or selling” the invention or discovery. Patents do need to be renewed. However, your original patent could be good for as long as 20 years. * USPTO
Why should I get a patent for my invention or discovery? Having a patent is a way to prevent someone else from taking credit for your invention or discovery and potentially receiving profit and recognition for it!
Be careful though…the US has a “First Inventor to File” provision, which means that the first person to file the invention or discovery idea with the USPTO (even provisionally) will/can be recognized as the inventor. Knowing this, there is a provisional patent that can be submitted. It is not the same as having a patent, but it will allow your invention/discovery to be on file with the USPTO so that no one can try to claim it while you are still working. It should be submitted as soon as possible. This provisional patent will be good for 12 months. (It is best not to write about your invention or discovery before it has a provisional patent. Any information that is available to the public…even if you, the creator, have shared this information yourself…could prevent the patent from being approved. It might be said that the public had prior knowledge of the discovery/invention.) During the time you have your provisional patent, you can search the USPTO database of patents to make sure the invention/discovery or a similar invention/discovery has not already been patented that could cause issues. You can do this prior to filing a provisional patent as well, it is just urgent that your provisional patent be filed as soon as possible.
A provisional patent can not become a permanent patent. When you are ready to file for a regular patent, the paperwork can once again be found on the USPTO site. When starting a business you will have many different areas that need your focus. Obtaining a lawyer for getting a patent is not necessary, but can help this lengthy process (sometimes 2-3 years) be much smoother and free up your time.
We’ve all seen the little “c” inside of the circle on pages of books, song lyrics, movies, etc. As you probably know, this is the copyright symbol. Copyright protects original works of authorship. This can include “literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture”. *
Did you know your work is automatically copyright protected? But wait… to claim your original work, you need to put the copyright symbol, year of creation, your name, and “All Rights Reserved” at the bottom of the work. Even though copyright happens automatically, registering your work is still suggested. Should the need arise to defend your work in court you would need to have a registered copyright.
*Refer to Copyright.gov (Forms for filing for a registered copyright can also be found at this site.)
We hope this has provided some clarity between the difference of a trademark, patent, and copyright. The intent of this is not to provide any legal advice, as all of these can be very complex and individualized issues. For further information, we suggest seeking out an attorney that specializes in one or more of these areas.
© 2019 Zubifi, Inc. “All Rights Reserved”