In the U.S., and in many countries around the world, “intellectual property” refers to three categories of intangible work:
A patent is a right issued by the United States Patent and Trademark Office (“USPTO”) for an invention (can be a product or a process) that entitles the owner to prevent others from making, using, or selling the invention in the US.
Patents need to be registered with the USPTO to obtain rights, and it can be expensive to file a patent application. It’s also fairly complex, so it’s smart to engage a patent attorney to help file the application. It can be a time-consuming and costly process, but patents are valuable assets and can protect a business’s products.
There are three types of patents:
- Utility Patents – 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;
- Design Patents – granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
- Plant Patents – granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
The requirements to file a utility patent (the most common type of patent) are that the subject matter (the thing to be patented) be (1) eligible for patent protection under patent law, (2) new, (3) non-obvious, and (4) useful. It can be difficult to evaluate each factor, so it’s important to meet with a patent lawyer early on in the process.
Copyright right that protects original works of authorship. Copyright only protects works that are “fixed in a tangible medium of expression” (physical works). Copyright does not protect ideas. Examples of works protected by copyright are photos, novels, movies, songs, websites, sculptures, and architecture.
A work is protected by copyright automatically from the moment it is created and fixed in a tangible form. For example, the moment someone writes a poem on a piece of paper, that person owns the copyright to that poem. No registration is required. One work can have multiple copyrights within the work, all owned by different people or companies. For example, in the case of a song, there is the copyright to the performance of that song, the underlying composition of the song, the recording of that song, and in many cases, the lyrics to the song. Different people or companies can hold the copyright to each of those individual elements, making it difficult for someone else to get permission to use the song. Despite the fact that copyright protection is automatic, registration entitles the copyright owner to additional advantages under copyright law. It’s generally a good idea to register the copyright to works that will be circulating in public and that are important to the copyright owner like songs, movies, books, and websites.
A trademark is a word, name, short phrase, symbol, color, sound, or other device used to refer to the source of goods or services and distinguish the goods or services of one manufacturer or seller from another. Trademark rights are obtained by using the mark in commerce in connection with relevant goods or services. Registering the trademark with the United States Patent and Trademark Office (USPTO) entitles the owner to stronger rights.
Trademark rights are always associated with specific goods or services. For example, a person or company would not be able to obtain trademark rights to the word “Apple” generally. They would obtain trademark rights to the word “Apple” in connection with the sale of certain goods or services, like electronics and media. A trademark essentially gives the owner a monopoly over using the mark in connection with those goods or services, so others would not be able to use that same mark to market or sell those same goods or services.
Well-known and famous trademarks have stronger rights and continued use of a trademark for many years can also entitle the owner to stronger rights.
Business owners should check to see whether their desired business name, logo, and slogan/tagline are already registered with the USPTO before moving forward. If another person or company is using or has registered that name, logo, or slogan/tagline, the business owner should be careful not to infringe on that owner’s rights.