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Patent, Copyright or Trademark?

Determining the Intellectual Property Protection You Need for Your Business

In today’s business world, success hinges on ideas.  Without new and original ideas, businesses will struggle. What happens when you have an idea for your business? How do you protect that new business idea from others?  With everything at our fingertips and just a click away, protecting your intellectual property is more important than ever.  Patents, copyrights, and trademarks are different types of intellectual property rights that legally protect your ideas.  They protect different subject matter and provide various types of legal rights and protections. Determining which is best for your intellectual property protection will depend on multiple factors. 

 

Trademark

Patent

Copyright

 

What is it?

Words, designs, phrases, or other expressions which serve as “the brand” for a product or service

Ideas or concepts which are novel and non-obvious

Creative expressions such as prose, music or video

 

What qualifies?

Must be capable of representing a branding graphically, verbally, orally, or even by smell

Inventions which are:

1.     New

2.     Inventive step

3.     Industrial application

An original piece of work in tangible (physical) form

 

Application process

Comprehensive clearance search for confusingly similar marks or names. File an application to register a trademark with the USPTO

Clearance search for similar patents. File an application to register a patent with the USPTO

Once creative work is in tangible form, copyright is automatic but registration with the Libaray of Congress (U.S. copyright office) provides additional rights and statutory damages.

 

Terms & Renewal

10-year increments

20 years from filing (depending on the patent)

Life of author + 70 years

What is a Patent?

Business owners and creators often think they need a patent when they really need a trademark or a copyright. A patent protects inventions by restricting others from making, selling, or using a product like the one you have patented for as long as the patent is in effect. It gives you, the inventor, the monopoly to manufacture, use, and sell your invention. Patent protection means you have exclusive control over your invention,  manufacturing and can shut others out of the market.

Types of patents that you can apply for:

  • Utility patent: A utility patent protects inventions, processes, machines, pharmaceuticals, and electronics.  It protects the way something is used and how it works. It lasts for 20 years from the date you file your patent application.
 
  • Design patent: Design patents protect the ornamental appearance of a product. This includes the shape and configuration of something. In some cases, it can protect both the design and ornamentation. For example, if you create a new, unique piece of jewelry, you can protect the look or design by filing for a design patent.  This patent will protect your design for 14 years from the date the patent is granted.
 
  • Plant patent: This patent protects new, asexually produced plants.  Plant patents last for 20 years from the date you file your patent application. Patent law is unique and highly specialized. Acquiring a patent requires significant research within the industry or specialty of the invention.

What Is a Copyright?

Copyright is a form of intellectual property that protects original works.  As soon as the author or creator “fixes” the work in a tangible form of expression, it is copyrighted. There are many examples of the different types of works that can be copyrighted:

  • Paintings
  • Photographs
  • Illustrations
  • Musical Compositions
  • Sounds
  • Recordings
  • Computer Programs
  • Books
  • Poems
  • Blog Posts
  • Movies
  • Architectural works
  • Plays and much more

 

A work is considered “fixed” when captured in a permanent medium so it can be reproduced, communicated, or perceived.  You fix a work when you write it down or record it.  The artistic creation does not have to be published or made public to hold a copyright.

Registering your artistic or literary work with the U.S. Copyright Office is not necessary but strongly advised.  Registering your copyright provides exclusive rights that are required in order to enforce your rights through litigation in Federal court. Working with a copyright attorney will ensure that your works are protected.

What Rights Do You Get with a Copyright?


While registering your copyright is not always necessary, it is highly recommended for maximum protection. Registered copyrights provide the copyright owners with exclusive rights to:

  • Reproduce the work in copies or phonorecords
  • Prepare derivative works based on the work
  • Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership or by rental, lease, or lending.
  • Perform the work publicly if it is a literary, musical, dramatic, or choreographic work, such as a pantomime, a motion picture, or another audiovisual work.
  • Display the work publicly if it is a literary, musical, dramatic, or choreographic work, a pantomime, or a pictorial, graphic, or sculptural work. This right also applies to the individual images of a motion picture or audiovisual work.
  • Perform the work publicly by means of a digital audio transmission if the work is a sound recording.


Having a registered copyright protects you and your brand from copyright infringement. Our copyright attorneys will walk you through registering your copyright and ensuring your protection. And we will be available by your side if you are ever faced with copyright

Who is a Copyright Owner?

Everyone! You are the owner if you create an original work and write it down or record it. For example, if you take a photograph and print it or save it to a hard drive, the copyright to that photograph belongs to you. You own that photograph and the right to use it.

Companies and organizations other than the workscreators can also be copyright owners.  Copyright law allows ownership through works for hire.”   What does that mean for the creator? That means that the creator did the work for an employer within the scope of employment, so the employer owns it.  Work made for hire may also be applied to contracted employees for specific commissioned works.

Copyrights may also be transferred through assignment or from wills or bequests.

What Rights Does a Copyright Protect?

Registered copyrights provide the copyright owners with the following exclusive rights:

  • Reproduce the work in copies or phonorecords.
  • Prepare derivative works based upon the work.
  • Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership or by rental, lease, or lending.
  • Perform the work publicly if it is a literary, musical, dramatic, or choreographic work: a pantomime; a motion picture, or other audiovisual work.
  • Display the work publicly if it is a literary, musical, dramatic, or choreographic work; a pantomime; or a pictorial, graphic, or sculptural work. This right also applies to the individual images of a motion picture or other audiovisual work.
  • Perform the work publicly by means of a digital audio transmission if the work is a sound recording.

 

The length of the copyright protection depends on when the work was created.  Current law states that works created on or after January 1, 1978, have a copyright term that lasts for the life of the author plus 70 years.  The copyright is extended to 70 years after the last author’s death if it is a joint work.  Works considered works for hire, anonymous, or pseudonymous have protection for 95 years from first publication or 120 years from creation (whichever is shorter).

Whether you’re a creator or a business who is purchasing creative services, a copyright attorney can be extremely helpful when filing for copyright protection, navigating other available IP protections, or even writing and negotiating contracts. SecureMark Legal is here to help with your copyright needs.

Find Out How a Copyright Lawyer Can Help

What is a Trademark?

A trademark is a word, phrase, symbol, or design that identifies your goods and services and distinguishes your brand from your competitors.  A trademark is used for goods, while a service mark is used for services.

While simply using your name, logo or slogan does give you some level of trademark protection, it is important to consult with a trademark attorney to ensure the protection of your property. “Common law” trademarks are difficult to enforce and only apply to your immediate locality.  You can protect your trademark within your state by registering your trademark with the state. However, the most far-reaching and substantial protection comes from registering your trademark with the United States Patent and Trademark Office (USPTO).

What can be trademarked?

Trademarks offer protection for intellectual property items that help define your business, your brand.  Let’s take a look at what can be trademarked:

  • Product names and nicknames: Coca-Cola® and Coke®
  • Logos
  • Sounds: NBC chimes
  • Business Names
  • Slogans: Nike’s “Just Do It.®”
  • Color combinations or schemes: the brown of the UPS trucks
  • Smells: (yes, even smells) Hasbro received a trademark on the Play-Doh scent in 2018

 

In the area of trademark protection, it’s critical to be thorough and organized in your efforts. A trademark attorney can help you make sure you’re following all the best practices with regard to protecting your business name, brand, logo and any service names you operate under. SecureMark Legal has the expertise to help make sure you’re protected.

Find Out How a Trademark Lawyer Can Help

Your Florida Intellectual Property Law Firm

Let SecureMark Help You Navigate Patents, Copyrights, and Trademarks

Knowing the difference between patents, copyrights, and trademarks is essential to determining which protection to apply for. If you need a trademark but apply for a patent, copyright, or vice versa, you have wasted valuable time and money.

Patents allow the creator of certain inventions that contain new ideas to keep others from commercially using those ideas without the creator’s permission. For complete protection, you must file a patent application with the USPTO, and the patent has to be granted.

Trademarks, on the other hand, only protect names of goods and services, logos, slogans, etc.  They strictly identify your brand of goods and/or services. 

A copyright is established when the work is fixed in a tangible medium. Artistic works are automatically protected under copyright law the moment they are created.  But to file a Federal lawsuit against anyone that violates your copyright, you must register with the U.S. Copyright office. 

Working with an experienced intellectual property attorney can save you valuable time and money. SecureMark Legal can help you determine the proper IP protections that you need. Once you have decided what protection is required for your intellectual property, your attorney will help you navigate the process of applying for that specific protection.  Contact us to protect your property.

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