Trademark vs. Patent and Copyright

Prevent your intellectual property and business identifiers from being taken and used by your competition. Knowing how to protect inventions, original works, slogans, and logos will help you safeguard, build, and grow your brand.

A trademark legally identifies or represents a company or product

businessinsidertips.wordpress.com gathered the following information about trademarks, patents, and copyrights to help you protect the intellectual and physical assets of your business or property.

What is a Trademark?

By definition, a trademark is an identifying symbol, word, or words legally registered or established by use as the representation of a company or product.

The following are categories of trademarks:

  • Fanciful or arbitrary
  • Suggestive
  • Descriptive
  • Generic

Once a symbol or series of words is registered, it cannot be used by any other organization forever, as long as it remains in continuous use, the proper paperwork is updated, and associated fees are paid.

Do I Need a Trademark?

Yes. If you plan to exercise legal rights over the representation or imagery of your product or business.

There is no legal requirement for you to have an officially registered trademark for your product or business. However, you do not have “good” legal rights to your name or brand; in fact, you may not own your name or brand at all.

How To Apply for a Trademark

Some work goes into applying for a trademark, and all trademarks in the US are issued by the United States Patent and Trademark Office. Consider the following 10 steps:

Step 1 – Make Sure a Trademark Application is What You Need – If you want to protect a brand name and/or logo used on goods and/or services, a trademark is needed.

Step 2 – Choose The Mark – Sounds easy enough. Right? Before making a final decision about the mark you want to register, consider this:

  • Is the mark you wish to register registrable?
  • Can you easily protect or defend your mark?

Once you have a trademark, you as the owner are responsible for legal actions and enforcement.

Step 3 – Search for Similar Marks – Search the US Patent and Trademark Office’s database for similar trademarks in wording and/or design and being used on related products, goods, or services via a federal registration.

Step 4 – Identify Mark Drawing Format – When applying for a trademark, you will be required to identify your mark using a character mark drawing or special form drawing.

  • Character Mark Drawings are in text-only (no specific design, font, size, or color).
  • Special Form Drawings are required when the mark is composed of words, letters, or numerals presented such that it creates a unique or “special” conveyance of information otherwise lost if the text were registered using a character mark.

For more reading on drawing your mark visit, uspto.gov/trademarks/basics/mark-drawings-trademarks

Step 5 – Applicable Goods and Services Identification – A crucial step in the trademark application process is to clearly identify the exact goods/services the mark will represent.

Step 6 – Know Your Filing Basis – One or more filing bases must be included in an application. Each of the following four filing bases has different requirements to meet before your trademark, or service mark proceeds toward registration.

  1. Commerce basis (under Trademark Act Section 1(a)) – currently using the mark in commerce with respective goods and/or services.
  2. Intent-to-use basis (under Section 1(b)) – you have a bona fide intention to use the mark in commerce with respective goods and/or services in the near future.
  3. Foreign registration basis (under Section 44(e)) – you own a foreign registration (in your country of origin) of the same mark for the same goods and/or services.
  4. Foreign application basis (under Section 44(d)) – you own a previously filed foreign application filed within six months of your US application for the same mark representing the same goods and/or services. This basis is also called a “foreign priority basis.”

Note: If your application does not clearly include a filing basis, the USPTO will require that you amend your application to add one of the four bases mentioned above.

Step 7 – Do I Need a Trademark Attorney? – In some cases, yes. And in others, no. Observe the following:

  • Yes. When you reside in a foreign country, you must be represented by an attorney licensed to practice law in the US at the USPTO.
  • No. If you reside in the US or a US territory, you are not required to retain legal representation. However, it is highly recommended to hire an attorney specializing in trademark law.

Tip: Whether required or not, an attorney specializing in trademark law can help you avoid application errors and red tape by assisting you throughout the application process.

Step 8 – Application Preparation and Submission – Before moving on, take some time to log onto or create an account Trademark Electronic Application System (TEAS) at account.uspto.gov/profile/create-account Then, once signed up or logged on, proceed to:

  1. Fill out and file the required application forms through the TEAS site
  2. Monitor your application status through the Trademark Status and Document Retrieval (TSDR) system at tsdr.uspto.gov
  3. Maintain the accuracy of your personal information throughout the application process. If you move or begin using an alternate email address, update your information in the “profile” section of the TEAS
Trademark status document retreival

Trademark status document retreival

Note: Application fees are considered processing fees and are nonrefundable. Even if your application does not result in a registration, your fee will not be refunded.

Step 9 – Collaborate with Your Assigned USPTO Examining Attorney – Once the USPTO determines your application has met the minimum filing requirements, your application will be assigned a serial number and forwarded to an examining attorney.

The examining attorney will determine whether your application satisfies applicable rules and statutes and that you have included required fees.

If the examining attorney deems a mark unregisterable, the attorney will issue an office action explaining technical or procedural deficiencies in your application. You or your legal representative must respond to an office action within six months to avoid your application being declared abandoned.

Step 10 – Application Approved or Denied – If there are no objections to your application or you have resolved all objections, the mark will be published in the USPTO’s Official Gazette, where anyone objecting to your mark has 30 days to file an objection to the registration or request an extension to oppose it.

If the application survives the process unopposed or defeats any opposition, the USPTO will register the mark and issue a certificate of registration.

If you cannot overcome all objections to your application, the examining attorney can issue a final refusal office action.

What is a Patent?

Patents grant exclusivity to an objects inventor

A patent is a right, granted by a country, of exclusivity to an inventor, allowing the inventor to exclude or prevent others from making, producing, using, or selling his or her invention in that country during the life of the patent.

Do I Need a Patent?

Yes, if you want to protect your invention(s) from being copied and marketed by other players in your industry.

However, most startups and small businesses lack the time or resources to defend their intellectual property. Ultimately, patents are groups of words interpreted by patent examiners, juries, and judges, making them extremely difficult, time-consuming, and expensive to defend.

Note: In the US, a patent application must be filed with the USPTO (www.uspto.gov) no later than one year following a description of the invention being published or publicly disclosed or the invention is first put on sale or made available for commercial use. This allows the inventor to test market the invention before investing in its patenting.

How To Apply for a Patent

The filing for a patent may seem like an intimidating task, but it doesn’t have to be. Patents in the US are issued by the United States Patent and Trademark Office.

Step 1 – Patent Search and Viability – Search the United States Patent and Trademark Office at patft.uspto.gov/netahtml/PTO/search-bool.html and verify that your invention is patentable, becaue some items can and cannot be patented include:

  • Laws of nature
  • Abstract ideas
  • Inventions considered offensive to public morality
  • Inventions not considered useful

Note: if it’s a business name you want to protect, you should seek a trademark. Books, Plays, and songs are protected with copyrights.

Step 2 – What Type of Patent Do You Need? – When initiating the patent process, you’ll be required to select the type of patent you are applying for. Selections include:

  • Provisional
  • Utility
  • Design
  • Plant
  • International

Note: The Patent Cooperation Treaty (PCT) System permits you to acquire patent protection for an invention in a large number of countries simultaneously by filing for a single “international” patent.

Step 3 – Hire a Patent Practitioner – Avoid costly procedural mistakes and cut bureaucratic red tape by hiring a patent attorney to shuttle your invention through the patent application process.

Step 4 – Protect Your Invention with a Provisional Patent – Patent law does not recognize “who invented it first,” rather “who filed for the patent first.” A provisional patent application provides an added layer of protection in the event someone claims they had the idea before you.

Step 5 – Gather Data for Your Formal Application – Your application will require you to submit the following:

  • Abstract
  • Background
  • Summary
  • Detailed Conclusion including ramifications and scope

Tip: Unless you are well-educated to do so, it is highly recommended to have your patent practitioner craft your item’s legal scope for the application.

Step 6 – Complete and Submit Your Patent Application – Check and recheck your completed application. The patent application process can last from one to three years, and mistakes or discrepancies can cause it to be rejected. Once submitted, consider the following:

  • Your case will be assigned one patent examiner
  • Quickly respond to any correspondence or requests from the examiner
  • If you have a patent practitioner, the USPTO will communicate with them
  • You can also arrange an interview to address the examiner’s questions

Note: If your application is twice rejected, you can launch an appeal with the Patent Trial and Appeal Board.

What is a Copyright?

Copyright speaks to the legal right of an owner and his intellectual property

The right to copy. Copyright speaks to the legal right of its owner’s intellectual property. This means the original creators of literary, artistic, educational, or musical products and anyone they give authorization to are the only individuals with exclusive rights to reproduce the specified content.

Do I Need a Copyright?

Yes, if you intend to protect and defend your intellectual property.

Copyright for your intellectual property is not mandatory. However, copyright registration provides substantial legal protection. A copyright can help you avoid costly and timely litigation and proves itself essential if you ever file a copyright infringement lawsuit. Copyrights in the US are issued by the United States Copyright Office (USCO).

How To Apply for a Copyright

Applying for copyright protection over your intellectual property is a relatively simple process that can be completed in four easy steps.

Step 1 – Know What You Can and Cannot Register for Copyright Protection – Copyrights protect written works such as:

  • Poems
  • Novels
  • Musical compositions
  • Plays
  • Sound recordings
  • Audiovisual works
  • Choreographic works
  • Architectural works
  • Artwork
  • Computer works
  • Maps
  • Technical designs/drawings

Names, titles, slogans, ideas, concepts, etc., don’t qualify for copyright protection but may be eligible for trademark protection.

Note: You can apply for copyright protection before publishing your work. Keep in mind that you can only register a copyright for material if you own the legal rights.

Step 2 – Fill out a Copyright Protection Application – You can download, print, and complete a paper registration form at https://copyright.gov/forms/ or log in to the Electronic Copyright Office (eCO) registration system at copyright.gov/registration/ to start registering your work digitally.

Tip: If you feel that the application process is too complex and will need assistance protecting your original works by copyright, hire a trusted business attorney who works with intellectual property law.

Step 3 – Application Submission and Application Fee Payment – You can submit your copyright application electronically or by hard copy. Consider the following:

  • Electronic Submission – Online copyright registration allows you to attach and submit certain types of electronic files with your application. This feature eliminates the need to send documents and other information via mail.
  • Paper Submission – When submitting paper applications by mail to the Library of Congress, you may be required to submit multiple hard copies of the work you want copyrighted.
  • Application Fees – Pay application fees according to the filing method you used. For Copyright Office fees, visit copyright.gov/circs/circ04.pdf

Note: Your copyright registration becomes effective when the Library of Congress receives your completed application and application fee. However, the government must still process the application and may still deny copyright protection.

Step 4 – Retain Your Registration Certificate – Depending on the complexity and completeness of your application, processing time can take anywhere from 2 to 24 months or longer. Once your application is processed by the US Copyright Office, a certificate of registration will be sent to you for your copyrighted work.

If your application is denied, you can file a request for reconsideration and pay an additional fee.

How To Protect Your Intellectual Property

In this article, you discovered how using trademarks, patents, and copyrights can protect your intellectual and physical business assets and how to apply for each one.

Attaining trademarks, patents, and copyrights provides you with a powerful tool to hold those who infringe on your rights legally accountable for their actions.

Without legal protection through copyrights, patents, and trademarks, you will have little to no legal leverage to stop or prohibit others from stealing your intellectual property.

Sources:
uspto.gov/trademarks/basics/trademark-patent-or-copyright
web.mit.edu/e-club/hadzima/the-importance-of-patents.html
copyright.gov

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