Business owners and creators often use “trademark,” “copyright” and “patent” as though they were interchangeable. You might hear someone say they’ve “copyrighted” a business name, or “patented” a logo. Neither is quite right.
Each type of intellectual property protects something different, is created in a different way and lasts for a different length of time. Knowing the difference helps you protect what you’ve built, and avoid infringing on someone else’s rights.
Key takeaways
- Trademarks protect brand identifiers like names, logos and slogans that tell consumers who is behind a product or service.
- Copyrights protect original creative works such as writing, music, photos, art and software code.
- Patents protect inventions: new, useful and non-obvious processes, machines, products and designs.
- Copyright exists automatically once a work is created. Trademarks arise from use. Patents must be applied for and granted.
- A single product can be protected by all three at once.
Trademarks: protecting your brand
What they protect
A trademark is any word, phrase, symbol, design, or combination of these that identifies the source of goods or services and distinguishes them from others. Examples include:
- Brand names and product names
- Logos
- Slogans
- In some cases, distinctive colors, sounds or product packaging (trade dress)
A mark used for services, rather than goods, is sometimes called a service mark, but the rules are essentially the same.
How you get protection
In the United States, trademark rights come from using the mark in commerce, not from registration. Using a mark gives you “common law” rights in the geographic area where you use it.
Federal registration with the U.S. Patent and Trademark Office (USPTO) gives important additional benefits, including:
- A legal presumption that you own the mark nationwide
- The right to use the ® symbol
- The ability to sue in federal court and, in some cases, recover enhanced damages
- A basis for registering abroad and for blocking infringing imports
You can use ™ (or ℠ for services) with an unregistered mark. The ® symbol may only be used once the USPTO has registered the mark. See our guide on how to register a trademark.
How long it lasts
A trademark can last indefinitely, as long as you keep using it and, for registered marks, file the required maintenance documents. Stop using it, and you can lose it.
What makes a strong mark
Invented or arbitrary marks, like a made-up word or a common word used for an unrelated product, are the strongest. Descriptive terms that simply describe the product are hard to protect, and generic terms can’t be trademarks at all.
Copyrights: protecting creative works
What they protect
Copyright protects original works of authorship that are fixed in a tangible form. That includes:
- Books, articles, blog posts and website copy
- Music and sound recordings
- Photographs, paintings, illustrations and graphic designs
- Films and videos
- Software source code
- Architectural works
Copyright protects the expression of an idea, not the idea itself. It also doesn’t protect facts, short phrases, titles, names or slogans. Those may be candidates for trademark protection instead.
How you get protection
Copyright exists automatically as soon as an original work is created and fixed, for example written down, saved or recorded. You don’t need to register it or use the © symbol.
But registering with the U.S. Copyright Office matters. For U.S. works, registration is generally required before you can sue for infringement. Timely registration, generally before the infringement starts or within three months of publication, is also necessary to claim statutory damages and attorney’s fees, which are often the most valuable remedies.
How long it lasts
For works created today by an individual, copyright generally lasts for the life of the author plus 70 years. For works made for hire and anonymous works, it is generally 95 years from publication or 120 years from creation, whichever ends first.
Who owns it
The creator generally owns the copyright. An important exception is work made for hire, such as work created by an employee within the scope of their job, which belongs to the employer. Businesses that hire freelancers often need a written agreement assigning the copyright, because commissioning a work doesn’t automatically transfer ownership.
Patents: protecting inventions
What they protect
Patents give an inventor the right to exclude others from making, using, selling or importing an invention for a limited time. There are three main types:
- Utility patents cover new and useful processes, machines, manufactured articles and compositions of matter, or improvements to them. This is what most people mean by a patent.
- Design patents protect the new, original, ornamental appearance of a manufactured item.
- Plant patents cover new varieties of asexually reproduced plants.
To be patentable, an invention must be new, useful and non-obvious to someone skilled in the field. Abstract ideas, laws of nature and natural phenomena can’t be patented by themselves.
How you get protection
Unlike copyrights and trademarks, patent rights exist only if the USPTO grants a patent after examining an application. The process typically takes years and involves detailed technical and legal drafting.
The U.S. uses a first-inventor-to-file system, so filing early matters. Public disclosure also starts the clock: in the U.S., you generally have a one-year grace period after your own public disclosure to file, and many other countries have no such grace period at all. A provisional patent application can help secure an early filing date.
How long it lasts
A utility patent generally lasts 20 years from the filing date of the application, as long as maintenance fees are paid. Design patents filed today last 15 years from the grant date. After that, anyone can use the invention.
Side-by-side comparison
| Trademark | Copyright | Patent | |
|---|---|---|---|
| Protects | Brand identifiers | Creative expression | Inventions and designs |
| Examples | Name, logo, slogan | Book, song, photo, code | Machine, process, drug, product design |
| How rights arise | Use in commerce; registration adds benefits | Automatically on creation | Only when granted by the USPTO |
| Government office | USPTO | U.S. Copyright Office | USPTO |
| Duration | Indefinite with continued use | Generally author’s life + 70 years | Generally 20 years from filing (utility) |
How they work together
A single product can involve all three. Take a smartphone app:
- The app’s name and logo can be trademarks.
- The source code, graphics and written content are protected by copyright.
- A new technical method the app uses might be patentable, as might the ornamental design of a new device.
Businesses also rely on trade secrets, such as recipes, customer lists or algorithms, protected by keeping them confidential, often through non-disclosure agreements.
Frequently asked questions
Can I copyright my business name?
No. Names, titles and short phrases aren’t protected by copyright. A business name used to identify goods or services may be protected as a trademark.
Does putting © on my work protect it?
Copyright exists without the notice, but using © can discourage copying and can prevent an infringer from claiming they didn’t know the work was protected. Registration provides much stronger enforcement options.
Can I patent an idea?
Not by itself. You can patent a specific, concrete invention that puts an idea into practice, if it meets the requirements for patentability.
Is registering a business name with my state the same as a trademark?
No. Forming an LLC or registering a business name with your state doesn’t give you trademark rights, and it doesn’t stop someone else from having prior rights in the same name.
When to talk to an IP lawyer
Consider talking to an intellectual property attorney before launching a new brand, so you can clear the name and avoid infringement, before publicly disclosing an invention, when hiring contractors to create content or code, or if you receive or need to send a cease and desist letter. Patent applications in particular must be prepared by a registered patent attorney or agent if you want professional representation before the USPTO.