What Are the Differences Between Trademarks, Patents, Copyrights, and Trade Secrets?
Plus, an expert advises on how to use them to protect your big idea.
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When you have an idea for a business or product, you want to know how to protect that idea from being used by someone else. All of these types of intellectual property—trademark, patent, copyright, and trade secret—are protected differently. In some cases, you may end up using all four. "Intellectual property is a type of that itself is a general category of valuable assets that are created by people," explains Adam Mossoff, law professor at GMU and board member of the Center for Intellectual Property Understanding. "The reason why we have a different way of categorizing intellectual property is an invention is not the same thing as a book, and a book is not the same thing as a recipe."
Each type of legal protection has its own requirements and application process, so it is even more important to choose the right one for your situation. You don't want to waste time and money pursuing a legal protection that you don't need or, worse, have no right to pursue. Here, we explain the four main types of legal protection for your business, including the affiliated name, intellectual property, and products.
Trademarks identify a company, brand, or product and are what differentiates it from another. A mark can be a word, phrase, or symbol, but it isn't necessarily the business name itself. Trademarks protect the goodwill created by a company in the marketplace, and its symbol often indicates quality. Examples include the Nike "swoosh" logo, Apple's half-bitten apple logo, or the likeness of Disney's Mickey Mouse—which have "established a relationship with consumers through their products," as Mossoff explains. You can apply for a trademark through the United States Patent and Trademark Office; however, you can use "common law" trademarks to stake a claim to your unique mark just by putting "TM" after the word, phrase or symbol. Trademarks have no expiration date, and the rights for the trademark come from its actual use. If you have a trademark and continue to use it in your commerce and operations, then it is an active mark.
Patents only apply to inventions. Let's say you designed a new sewing machine or developed a device that improves the functionality of current sewing machines in the marketplace—you could apply for a patent to that invention. This legal protection only lasts for 15 to 20 years, but it does provide a historical record of the of the first person to legally claim the rights to an invention. You would have to apply for a patent through the USPTO, and the machines, manufactured articles, industrial processes, or chemical compositions would be publicly disclosed.
Unlike patents and trademarks, copyrights are managed by the U.S. Copyright Office. Another difference is that copyright is even mentioned in the Constitution under Article I Section 8 in which Congress has the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoverie." Copyright law has since been interpreted to also include other creative works like music, blogs, digital art, and more. The individual who is claiming copyright can only claim it for original work that has tangibility (i.e., it's published and accessible in some form). The copyright will generally last for as long as the individual is alive plus an additional 70 years, and writings and artwork will enter the public domain, which allows for free and uncredited use of the work, after that time has passed.
There is a fourth type of intellectual property known as trade secrets. This is information—whether a formula, program, or design—that is not generally known to the public and provides an economic benefit for its holder. "This was based in state common law until the Defend Trade Secrets Act (DTSA) was signed into law," Mossoff explains, "which gives you the right to go to federal court." The passing of this legislation was influenced by international piracy becoming a commonplace problem.
How to Protect Your Intellectual Property
When it comes to any of these types of intellectual property, "the general rule of thumb is to keep it secret," Mossoff says. "If you disclose it, you may lose the right to protect it." Furthermore, his advice is to consult an intellectual property lawyer. "Engage with experts who can advise on what can be protected as a copyright, patent, trademark, or trade secret," he says. "They will provide you with an opinion letter that details your options."