Friday, February 2, 2018

What's the Difference Between Trademark, Patent and Copyright?


Trademark protects the words, phrases and logos used to identify the source of goods or services. Patent protects inventions. Copyright protects literary and artistic works of authorship. We will discuss all three in more detail below.

Trademark is a brand name. You can register your business name, logo, and your product names. For example, McDonald's, the double arched "M" symbol, and Big Mac are all trademarks. Trademark/service mark may include words, names, symbols used, or intended to be used, in commerce to distinguish your goods or services from goods or services of others. The terms “trademark” and “service marks” are often used interchangeably, and both offer the same protections. If you use your trademark or service mark in interstate commerce (you do business with customers in other states or internationally) you can register your mark both at the federal and state level. If you do business exclusively within your state, you can register at the state level.

In US, trademark rights come from actual use in commerce and do not have to be registered to be valid. "Common law" trademark rights can last forever - as long as you continue to use the TM in commerce to indicate the source of services or goods. A trademark registration can also last forever as well - as long as you file specific documents and pay fees at regular intervals.

NOTE: Use of a business name does not necessarily qualify as trademark use, though other use of a business name as the source of goods or services may qualify it as both a business name and a trademark. Many states and local jurisdictions register business names, either as part of obtaining a certificate to do business or as an assumed name filing. For example, in a state where you will be doing business, you might file documents (typically with a state corporation commission or state division of corporations) to form a business entity, such as a corporation or limited liability company. You would select a name for your entity, for example, XYZ, Inc. If no other company has already applied for that exact name in that state and you comply with all other requirements, the state likely would issue you a certificate and authorize you to do business under that name. However, a state’s authorization to form a business with a particular name does not also give you trademark rights and other parties could later try to prevent your use of the business name if they believe a likelihood of confusion exists with their trademarks. For more information on when a designation may function as both a business name (“trade name”) and a trademark or service mark, see TMEP §1202.01

Federal registration
Even though it is not necessary to formally register a TM, registration offers your business the following benefits:

- Your exclusive rights to use the mark nationwide and to sue others for infringement;
- Easier to register your mark internationally with U.S. registration as a basis;
- Ability to record your registered mark with the U.S. Customs and Border Protection Service to prevent importation of infringing foreign goods;
- Public notice of your claim of ownership of the mark;
Listing in the United States Patent and Trademark Office’s databases.

You do not have to be a U.S. citizen to register your trademark or service mark with the U.S. Patent and Trademark Office. Trademark or service mark registration process can take anywhere from 7 months to several years, depending on complexity and on whether you did everything right when filing. The trademark or service mark registration will stay valid as long as you timely file maintenance documents. You must file a Declaration of Use under Section 8 between the fifth and sixth year after registration. You must also file a Declaration of Use and Application for Renewal under Sections 8 and 9 between the ninth and tenth year after registration, and every 10 years thereafter. If you fail to timely submit these documents, your registration will be cancelled and cannot be revived.

State level registration
State trademark registration provides much less legal protection than the federal registration. However, state trademark registration will notify anyone who checks the state's list that the trademark is yours. State level registration is usually quicker. In California, registering a trademark with the Secretary of State can be done in a few weeks.

Patent is something you register if you have an invention, such as industrial process, machine, manufactured articles and chemical compositions. The duration of patent protection depends on the type of patent granted:

Design Patents - 15 years from issuance for applications filed on or after May 13, 2015 (14 years from issuance if filed before May 13, 2015)

Utility patents and plant patents - 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed.

Copyright protects your original work of expression, such as an article, website, software, cookbook, song or a painting from unauthorized use by others. You get the exclusive rights to sell, display, reproduce your work, and sue those that infringe on those rights. Generally, copyright for works made after January 1, 1978, lasts for 70 years after the creator’s death. For works made for hire, the copyright lasts the shorter of 95 years from publication, or 120 years from creation. Works published under a pseudonym or anonymously are protected for 95 years after publication or 120 years after creation, whichever is first. Under the current law, it is not necessary to publish a work or display the copyright symbol in order to obtain copyright.

Fair use

Your exclusive rights notwithstanding, sometimes others can use your work without your permission, as long as it constitutes “fair use.” Fair use is usually limited to educational, newsworthy, criticism and commentary purposes. For example, somebody may freely summarize or quote a short passage from your article to illustrate a point.

You must register copyright in order to bring a lawsuit for infringement in federal court. It’s best if you register within three months of the date of publications or at least before the alleged infringement happened. U.S. Copyright Office at the Library of Congress registers copyrights. If you register, you may recover up to $150,000 in a lawsuit even without proving any actual monetary damages. Copyright Office records are public, which means anybody has access to them.

If you file online, you will receive a certificate within a few months. Paper filings could take a year. These time frames presume you’ve done everything correctly when you filed. Seek qualified counsel for assistance.

International copyright protection

There is no uniform international copyright law that will automatically protect your copyright throughout the world. However, your copyright will be protected in most of the countries in the world because U.S. has treaties and conventions with most, yet not all, of the countries in the world to honor each other’s citizens copyrights. For a complete and current list of such countries, see U.S. Copyright Office Circular 38a, International Copyright Relations of the United States.