Understanding IP Types - Copyright, Trademarks, Patents, & Trade Secrets Simplified!

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

1. 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 creativity, 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 infringe. Virtually all forms of creativity are eligible for copyright protection - paintings, choreography, songs, sculptures, pictures, books, movies, et al. All of these are creative works eligible for copyright protection.

   
   

   You may have noticed 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. The law encourages writers and creators through financial incentives.

   It grants authors the exclusive right in their work for a limited period of time. Copyright protection lasts the life of the author plus 70 years. The author and his/her heirs can exploit the work for profit for the term of that copyright protection. 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 pursue the creative arts while providing a benefit to the general public as well. 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 to protect your own work, check out our blog post Creative Smarts: 12 Smart Strategies (& Tips) to Protect Your Art!

Copyrights are for original works of art. Now let's looks at trademarks!

2. 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 a critical element because trademarks are all 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 doing so in the course of business. If you stop using the mark with your business, 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 for 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. An informed consumer who sees the trademarked logo should know which company it's identifying, even if there's 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.

   
   

   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. Of course, you'd be buying something that's of inferior quality. The trademark protection is designed to protect the reputation of companies in addition to protecting consumers from being duped by knockoffs. Instead, brands are protected and have legal options for knockoffs and other illegal business practices. For example you 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 coffee. Yet you still paid a premium Starbucks price for it! In this example Starbucks would have grounds to sue for trademark infringement since Marbucks piggybacked off their brand name and deceived you the consumer into thinking it was a Starbucks coffee!

   
   

   Copyrights and trademarks are often confused; both can involve images or designs with significant artistry. People often presume trademark protection protects the creative elements of a work. In actuality, it protects the brand company's logo as being the official source of the good or service. A logo could have zero creativity and still be eligible for trademark protection, whereas to be eligible for copyright protection, creativity is a requirement. For example, the Starbucks mermaid is a trademarked logo, but it also has enough artistry to be copyrighted as a creative work. The copyright and trademark registrations are separate and distinguishable protections, but they do exist 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.

   
   

   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.

   
   

3. 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 as well.

   
   

   An invention needs to meet certain USPTO requirements to be awarded a patent. The requirements are that the invention be (1) novel, (2) useful, (3) 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 (for some applications it can be several years) where the United States Patent and Trademark Office (USPTO) assigns your application to an examining attorney (EA). The examining attorney's job is to parse through your application and compare it to previous patents 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 never did anything with an invention, but still disclosed it to the public, that may still defeat your patent application. "Disclosure" in patent law can be as simple as a magazine article from the 1700's referencing the invention. To the USPTO, this 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. Examining attorneys are required to be thorough. Drafting and reviewing patents is a specialized skill within the law as well. Patent attorneys must pass a patent bar exam to handle or "prosecute" patent applications. If you're looking to file a patent application, it's best 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 a successful invention or innovation. During this time the patent holder may manufacture the patented good alone or license the patent out and collect royalty fees. After that, the patent expires and others are allowed to use the patented invention without infringing. 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, the guiding principle underlying U.S. patent law is "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 for a "patent issued" or "patent pending" label. If you keep your eyes peeled, you will notice more of these on everyday items than you may realize. For example, you may notice patent numbers or patent awarded stickers on various equipment at your local gym. 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 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. Copyrighted 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.

   
   

4. 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 important. A trade secret is a confidential or secretive business asset without which the business would lose a proprietary, competitive advantage. This can be a secret formula, recipe, unique production technique or process, or even a 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 has over its competitors (who, in turn, 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. If you wanted to source the recipe for Coke at home, you'd be unable to find it. Comparatively, Pepsi-Cola has a trade secret in its distinct soda formula. Another huge example is Google's search algorithm which is withheld as a trade secret from other search engine competitors. 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 the case of Coca-Cola's formula, they safeguard their secrecy by limiting access to the formula to just a handful of executives. It's likely enough to make sure that if someone dies, the formula won't be lost forever but probably not much more. There's no registering a trade secret with a government office, rather the protection is inferred through the active protection of its secrecy. Some of these methods include limiting the trade secret's availability, 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. 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.

   
   

5. 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

   Trade Secrets are for Business Secrets

   Patents are for Inventions

   
   

   A good exercise is to identify each of these in the goods, products, and services you use each day. You can also take note next time you're at the store. Once you start distinguishing the different types of IP, you'll see all IP much more clearly!