Patents, Trademarks, and Copyrights – What’s the Difference?

By: Mark Malek

I am writing this article today as a very basic overview of the difference between the three types of intellectual property that are most commonly referred to in every day use.  There are several different types of intellectual property, but this discussion will focus on the difference between patents, trademarks and copyrights.  I was also fortunate enough this past week to give a presentation at an intro to law class at the Florida Institute of Technology this past week.  It was an honor and a privilege to discuss intellectual property with these future graduates.

In short, patents protect function, trademarks protect logos and names that are used to identify the source of a good and/or service, and , copyrights are used to protect works of art.

Patents are generally used to protect an invention.  This is a good article on a brief overview on patents.  In order for something to be patentable, it has to be useful, new (novel), and not obvious.  That sounds easy enough, but many times, these words do not mean the same thing in patent law as they mean in every day language.  When a patent application is submitted to the patent office, the patent Examiner will conduct a prior art search.  After retrieving several prior art references, the Examiner will compare those references against the elements of the invention.  See this article for a good description of what prior art is.   If the elements of the invention are provided for in the references that are located by the Examiner, then a rejection will be issued.  Again, it is much more complicated than this, but this article is written to provide a very broad overview of intellectual property.

A trademark is a source identifier. Like it sounds, a source identifier is something that identifies the source of the goods and/or services upon which the trademark is placed. Trademark law aims to prevent a likelihood of confusion of the consumer.  In other words, trademark law allows the trademark owner to stop others from using a trademark on similar goods that would cause confusion to the consumer as to the source of the goods.

A copyright protects works of art.  The interesting things about a copyright is that you automatically have copyright protection the minute that it is “fixed in a tangible medium.”  I am often asked what that means.  The best way to describe this is by way of example.  The example I often provide is software.  If someone is thinking about how to write some software, they do not have copyright protection yet.  When the software developer starts writing the software, they still do not have copyright protection.  It is not until the software developer saves the code to the hard drive that copyright protection is afforded.  Upon saving the code to the hard drive, the software developer has fixed the work of art in a tangible medium.  Several different copyrights exist as it pertains to software.  For example, as referenced above, there is a copyright in the code itself.  There is also copyright of the artistic expression of the software product on the screen, i.e., how is the program presented to a user.  It is important to understand, however, that copyrights do not protect function at all.  Therefore, the function that the software carries out is not protectable by copyright – you have to get a patent for that.

Although a copyright owner has copyright protection on their artistic expression the minute it is fixed in a tangible medium, they cannot enforce it without a copyright registration.  There will be more discussion on copyright registration in future articles.

If you have some additional questions regarding the different types of intellectual property protection, then  feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.