There are various types of intellectual property you've likely heard of - copyrights, trademarks, patents, and maybe even trade secrets. For those that work outside of IP, the difference between them can be dizzying! We'll clear up any confusion and get you oriented towards your own IP success
Copyrights Are for Original Works of Art
Copyright law protects original works of art. A copyright, in its simplest terms, is the right to keep others from using or copying your work without your permission. If you're an artist or designer looking to protect your creative works, copyright protection is designed to do that for you. It entitles authors of original works to certain rights that prevent the unauthorized use of their work and allows them to sue people who do. Copyright covers an expansive list - paintings, choreography, songs, sculptures, pictures, books, movies, et al. All of these are creative works eligible for copyright protection.
You've probably noticed how I mentioned the word "original" several times which is purposeful. The crux of copyright protection is protecting originality. To be eligible for copyright protection, a work needs to fulfill two elements: the work needs to be original and fixed in a tangible medium. All that's necessary under the law is a "modicum of originality" which is a low bar to meet under U.S law. "Fixed in a tangible medium" simply means written down or recorded in some way. Once these two elements are met, you are protected under federal copyright law.
The raison d'être of copyright law is to promote the progress of useful arts and sciences for the public's benefit by encouraging writers and creators through financial incentives. It grants the author the exclusive right in his work for a limited period of time. Copyright protections last the life of the author plus 70 years (which is a fairly long time actually). The author and his heirs can exploit the work for profit for that time and to the exclusion of others. After that time, the work falls into the public domain where it's free for anyone to use. This "limited monopoly" as the law often calls it encourages authors to continue creating while also providing a benefit to the general public as works continue to fall into the public domain. Compared to other countries where there's less consideration for the rights of authors, our system excels in this respect.
If you're wanting to learn more about copyright strategies and tips to protect your own works, check out our blog post Creative Smarts: 12 Smart Strategies (& Tips) to Protect Your Art!
Copyrights are for original works of arts or in short, copyrights are for art. Now let's looks at trademarks!
Trademarks Are for Business Reputations
Trademarks are symbols, words, or phrases that are used in commerce and that identify or distinguish the source of a good or service. I've bolded and underlined "used in commerce" here for a reason. "Use in commerce" is critically important because trademarks are about business and branding. You won't be approved for a trademark unless you are using it in connection with a good or service and in the course of business. If you stop using the mark with your business for any reason, your mark could fail to meet renewal requirements, and you may lose your trademark. In theory though, if you continue to use your trademark in commerce, you could theoretically renew it indefinitely. There is no set expiration to registered trademark protection.
Famous examples of trademarks are common logos like the Nike "Swoosh", the FedEx arrow, and the McDonald's golden arches. These are brand symbols that identify the company to the consuming public. A consumer sees the trademarked logo and knows exactly which company it's identifying (even when there is no text). Trademark protection is also given to identifiable sounds and colors albeit less common. The "aqua-green" on Tiffany's jewelry boxes is trademarked as well as TV-channel NBC's memorable 3-note intro melody.
What's the legal reasoning of trademark protection? The government offers trademark protection as a means to prevent unfair competition and deceptive business practices. Counterfeit goods, piggybacking, and other IP theft would all be pervasive without proper protection. You'd see knockoff goods everywhere and eventually, you'd purchase one thinking it was a quality brand good only to have it fall apart on you. Instead, brands are protected and have legal redress for knock-offs and other illegal business practices. It protects the reputation of brands as well as consumers from being duped by a knockoff (infringing) brand. For example, you to go to the store and buy a "Marbucks" coffee thinking it's a Starbucks line of coffee. Well, as it turns out, it tastes like dirty bar water compared to Starbucks roast, yet you still paid a premium Starbucks price for it. In this example, Starbucks would have grounds to sue for trademark infringement since Marbuck's piggybacked off their brand name and confused or deceived you the consumer into thinking it was a Starbucks-based brand.
Copyrights and trademarks are often confused because both can involve images or designs with significant artistry. People often presume trademark protection protects the creative elements of a work, it does not. It's for protecting brands in commerce. What can be very confusing is that same design or logo can have both copyright and trademark protection. For example, the Starbucks mermaid logo has enough artistry where it's copyrighted as an artistic work, but it's also trademark-protected as a source-identifier for Starbucks use in commerce. The registrations and protections are separate and distinguishable albeit existing in the same logo. Ultimately, when you think of trademarks, always think of business and use in commerce. Without it, there is no trademark protection. It be thought of that simple.
Trademarks for protecting business brands and reputations, or in short, trademarks are for business. So far we've discussed that copyrights are for art and trademarks are for business. Now let's look at patents.
Patents Are For Protecting Inventions & Innovation!
Patents are a protection granted to inventors that allows them the right to exclude others from making, using, or selling their inventions during the life of the patent. Patent protection is also available for intangible innovations like new (or improvements to) existing systems, methods, or procedures. For general understanding though, it's best to think of patents as extending beyond physical inventions and including non-physical innovations. This alone will set you apart from the average person's understanding of IP.
An invention needs to meet certain USPTO requirements to be awarded a patent. The requirements are that the invention be novel, useful, and non-obvious. This is easier said than done since it involves evaluating the eligible invention against all of recorded history, both domestic and foreign. In order to do this, there is a rigorous and lengthy application process (which for some applications can be several years) where the United States Patent and Trademark Office (USPTO) assigns your application to an examining attorney whose job it is to parse through your application and compare it to previous patents and goods throughout history. They'll also do an exhaustive search to see the if the invention has already been disclosed to the public, which is fatal to a patent application. If someone came up with your invention years ago, never did anything with it, but still disclosed it to the public, that may defeat your patent application. "Disclosure" in patent law can be as simple as a magazine article from the 1700's referencing the invention, again even if it was never produced or protected. To the USPTO, his would fail to meet the non-obvious or novel requirements.
The high and lengthy bar for patent applications is this way for a couple reasons. Firstly, since a patent excludes others from using the invention, the financial reward can be astronomical. Pharmaceutical or biotech companies, for example, are fields where an awarded patent could mean tens of millions of dollars in profit. Thus, important patents may be subject to multiple objections from competitors. You can imagine how determined pharma or biotech companies would be in defeating a competing patent. Secondly, the process of determining the scope of claims (a legal term) can be enormously tedious and complex so examining attorneys are required to be thorough. Drafting and reviewing patents is a specialized skill within the law. Patent attorneys, for example, must pass a patent bar exam to handle (or "prosecute") patent applications. If you're looking to file a patent application, it's wise to seek out a licensed patent attorney.
Patents are awarded for a total length of 20 years, a pretty long time to profit exclusively off an invention. During this time, the patent holder may manufacture the patented good alone or license the patent out for royalty fees. After that, the patent expires and others are allowed to use the patented invention without infringing or having to pay a license fee. This, for instance, is where pharmaceutical drugs become available as generic drugs for a reduced cost. At this point, other inventors may bring competition into the market and use the recently patented invention for their own products or inventions, which confers an overall benefit to the public. Just like copyright law, this is a guiding principle underlying U.S. patent law - "to promote the progress of science and useful arts".
If you see an amazing discovery or invention in public, there is often a patent associated with it. There may also be no way to tell to the naked eye! One way is to look over a product for a "patent issued" or "patent pending" label. If you keep your eyes peeled, you will notice more of these on shelves and on everyday items than you may realize. For example, at the local gym, you may notice patent numbers or patent awarded stickers on various equipment. You can presumably take that information and go find out exactly what's novel or inventive about that equipment or product.
Patents are designed for people who are being awarded for the novelty and usefulness
of their designs and inventions. This is different than copyright law that focuses on originality and not usefulness. This is an important distinction, a creative works are often original but not useful, whereas, a patented work must be useful and novel.
In simplest terms, patents are for inventions. So far, we have copyright is for art, trademarks are for business, and patents are for inventions. Lastly, let's take a quick look at trade secrets.
Trade Secrets Are Confidential Secrets Never To Be Revealed
Trade secrets are not talked about as often as copyrights, trademarks, or patents, but they are no less an important type of IP. A trade secret is a confidential or secretive business asset without which the business would lose a proprietary, competitive advantage. This can be anywhere from a secret formula or recipe, unique production technique or process, or novel marketing strategy. The crux of a trade secret is that it's proprietary in nature and disclosure would fundamentally alter the advantage that business had over its competitors (who, in turn, might have their own trade secrets). One famous example of a trade secret is the Coca-Cola company's beverage formula. The Coca-Cola company has zealously protected their original Coke formula for decades as a company trade secret, meaning that if you wanted to source the recipe for Coke at home, you'd be unable to find it. You can see from this one example how important this trade secret is to their success. Comparatively, Pepsi-Cola has it own trade secret formula for its soda recipe. Another huge example is Google's search algorithm which is withheld as a trade secret from not just its search engine competitors, but from every website owner looking to maximize their search engine optimization. Doing so gives Google a tremendous advantage in the way it can leverage their business affairs, and ultimately, profit.
Maintaining a trade secret is no easy task as it requires continued and ultimate secrecy to be effective. In this case of Coca-Cola's formula, they safeguard their secrecy by limiting access to the formula to just a handful of executives - likely only enough to make sure that if someone dies, the formula won't be lost forever. There's no registering a trade secret with a government office, rather its protection is inferred through the active protection of its secrecy. Some of these methods include limiting its availability (as in the case of Coca-Cola), issuing and enforcing non-disclosure agreements (NDAs), and encrypting relevant data to prevent its exposure. Like trademarks, so long as they're kept secret, trade secrets can last forever.
If a trade secret is wrongfully disclosed, a company can bring a lawsuit for damages and penalties. In fact, there is federal legislation, like the Defend Trade Secrets Act (DTSA) that outlines the penalties and increased damages for disclosing trade secrets, even and up to criminal penalties.
Trade secrets are for confidential business assets, or in short, trade secrets are for business secrets.
Conclusion
We've provided clarity on the different types of IP, so you should feel just a bit more informed about intellectual property. If you notice, we distilled each one to an easy remember shorthand phrase that sums up each type of IP.
Copyright is for Art
Trademarks are for Business
Patents are for Inventions
Trade Secrets are for Business Secrets
If that's not enough easy enough to remember, we'd encourage you to turn this into a mnemonic. Or perhaps even better, play a game with yourself when you see artwork, brand logo, or an interesting product about which type of protection its likely to be afforded. For this exercise, remember a single work can be protected by a copyright, trademark, and patent all at the same time. This makes the game a bit harder, but it reinforces that each IP protection protects a different facet of the work and that the protections can coexist. A trade secret, by contrast, is an IP that you won't see in actuality, but can speculate to their existence depending on the good or service.
Once you get the hang of it, you'll see all IP much more clearly!
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