What’s the Difference Between a Trademark, a Copyright, and a Patent?

Many business owners are confused about the differences between trademarks, copyrights, and patents. Understanding how each works is the first step toward creating and protecting your intellectual property portfolio.

What’s a Trademark?

A trademark is the most common, and often the most useful, intellectual property right that small and medium-sized businesses will be looking to protect.

The Lanham Act defines a trademark as “any word, name, symbol, or device, or any combination thereof (1) used by a person, or (2) which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter, to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.”

In other words, it’s something that you put on your products to tell the consumer the source of the goods. And it can be just about anything – a word, a logo, particular packaging (known as trade dress), or even a jingle – if used the right way.

The key elements of a trademark are that it: 1) functions as an identifier of the source of goods, 2) is distinctive (i.e., that it is capable of distinguishing your goods from other people’s goods), and 3) is not merely ornamental.

When considering whether something is, or can be a trademark, courts typically consider four categories: 1) generic, 2) descriptive, 3) suggestive, and 4) arbitrary or fanciful.

Generic terms are things like “APPLE” for apples. These terms are the common name of a class of goods and can never function as a trademark.

Descriptive terms are those that identify a quality or characteristic of the goods offered. These terms come in several different varieties, like geographically descriptive terms (e.g., “WASHINGTON APPLES”), laudatory terms (e.g., “BEST APPLES”), surnames (e.g., “KENNEDY’S APPLES”), etc. Descriptive terms typically aren’t protectable as trademarks unless the mark has acquired distinctiveness through long, continuous, and exclusive use, often supported by extensive marketing, such that the consumer is likely to associate the mark with a brand and not its descriptive meaning (e.g., “AMERICAN AIRLINES”).

Suggestive terms are terms that do not directly describe a product, but that can suggest the product’s qualities or characteristics through imaginative interpretation. An example of a suggestive mark is “IGLOO” for use in connection with coolers. The product offered isn’t actually an igloo, but the consumer can guess that the product is intended to be used to keep things cool from the trademark. Suggestive terms are considered to be “inherently distinctive.” They are automatically protectable as long as your use is exclusive (i.e., you aren’t using someone else’s mark, or that the mark is so common that it’s lost its ability to function as a trademark).

Arbitrary terms are terms that have no association with the product offered (e.g., “APPLE” for computers). Fanciful terms are often called “coined terms” because they did not exist before they were used as a trademark (e.g., “KODAK” and “XEROX”). Arbitrary and fanciful terms are typically considered the strongest trademarks and make the best candidates for trademark protection.

In short, trademarks are about identity. They let consumers know who is behind a product, and the more distinctive the mark, the more powerful it is in setting your goods apart from the crowd.

What’s a Copyright?

A copyright is defined right in the name – it’s the right to make copies. More formally, copyright generally gives the creator exclusive rights to reproduce, distribute, display, perform, and create derivative works.

The Copyright Act states that “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

But, “[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”

A copyright exists in just about anything you can think of that you put down on paper or record through other methods, as long as 1) it’s original, and 2) it’s not functional.

The originality prong relates to how “thin” or robust your rights might be. If you take a picture of the Eiffel Tower, your picture is technically subject to copyright protection. It’s not functional for copyright purposes, it’s set to a fixed and tangible medium, and it is an original(ish) work of authorship. Its originality exists since, in all likelihood, no one else has ever taken a picture of the Eiffel Tower from the exact spot you took it, at that same height and angle, at the precise moment of the day, with the particular lighting conditions present, and with the unique cloud pattern in the background that existed when you took your photo. But the originality is limited since there are countless other pictures of the Eiffel Tower. So, your copyright will be “thin.” However, if you write a 500-page poem, in iambic pentameter, describing the details of the Eiffel Tower and celebrating its beauty, the originality of that work will be higher and the copyright will be more robust.

Generally speaking, copyrights are created the moment the work is set to its fixed medium. So, you have copyrights as soon as you snap that digital photo. But to sue for infringement, you need a registration first.

At bottom, copyright protects the creative expression of ideas, not the ideas themselves. It arises automatically the moment a work is fixed in a tangible form, and it gives the creator the exclusive right to control how that work is copied, shared, performed, or adapted. The strength of that protection depends on how original the work is, but whether it’s a simple photograph or a sprawling novel, copyright law is designed to safeguard the creative spark that makes a work unique.

What’s a Patent?

While trademarks are about identity and copyrights are about creative expression, patents are about inventions and functionality. A patent is a government-granted right that allows the inventor to exclude others from making, using, selling, or importing an invention for a limited period. In the U.S., that term is generally 20 years from the date of filing.

The Patent Act defines three basic types of patents:

1. Utility patents: the most common, covering new and useful processes, machines, manufactures, or compositions of matter (or improvements thereof). Think of software algorithms, pharmaceuticals, or a new type of engine.
2. Design patents: protecting the ornamental design of a functional item. The iPhone’s original rounded rectangle design is a famous example.
3. Plant patents: covering new and distinct varieties of plants that are asexually reproduced, such as new rose hybrids.

To qualify for a patent, an invention must be: novel (it hasn’t been done before), non-obvious (it’s not an obvious tweak or combination of existing things), and valuable (it must have some identifiable utility).

Unlike copyright, which arises automatically, or trademark rights, which can grow from use in commerce, patents require going through the formal application process at the U.S. Patent and Trademark Office (USPTO). The process is complex, often takes years, and usually involves lawyers and examiners going back and forth over whether the invention truly meets the requirements.

Patents also have a built-in trade-off: you only get protection if you publicly disclose how your invention works. In other words, the patent system is designed to encourage innovation by giving inventors temporary exclusivity in exchange for adding to the body of public knowledge.

Patents are powerful but limited. They can give inventors a significant competitive edge, but they’re harder to get, more expensive, and time-limited compared to trademarks or copyrights. Where trademarks protect your brand, and copyrights protect your expression, patents protect your inventions.

Whether you’re building a brand, creating content, or inventing new products, knowing the difference between these protections is key to securing your competitive edge. To evaluate which protections your business needs, contact Jimerson Birr.