Trademark vs Copyright vs Patent: The Beginner’s Guide

Whether you’re a business owner, artist, inventor, or another professional, protecting your intellectual property (IP) is a wise decision. Depending on the type of work you’re trying to protect, this may involve a trademark, copyright, or patent—each of which comes with a unique purpose and registration method. Familiarize yourself with the differences to determine which IP is right for you.

When To Get a Trademark

You want to get a trademark to keep others from using a word, phrase, symbol, or design that distinguishes your product or service from similar offerings. You can register a trademark with the US Patent and Trademark Office (USPTO), but this step is not required.

If you choose not to register your trademark, you’ll still have the right to use it. However, without a registration, you won’t get the USPTO’s legal protections—exclusive rights to the trademark and a presumption of ownership.

In other words, you’ll be the owner of the trademark, but you won’t be “officially” recognized as the owner by the government. We recommend you register your trademark—brand name, logo, slogan—to enforce your exclusive rights, if necessary.

When To Get a Copyright

Get a copyright if you want the exclusive right to sell, duplicate, or otherwise share and manipulate your work. What’s slightly confusing is that as an artist, you automatically get all of these rights when you create your original work. Therefore, registration is not required.

However, registering a copyright with the U.S. Copyright Office lets you protect your original work from unauthorized use. If someone were to use it illegally, the registered copyright provides an avenue for enforcement.

More specifically, registration of a copyright enables creators to bring a lawsuit for infringement of that work in federal court. Likewise, registration is required if you want to be eligible for statutory damages and attorney’s fees if that lawsuit is successful. Registering a copyright also enters it into the public record and entitled the creator to a certificate of registration.

When To Get a Patent

Get a patent if you have a process, machine, chemical composition or design that you don’t want others to replicate. A patent is the most complex type of protection for intellectual property: It protects how your invention actually works—not just how it looks.

Similar to trademarks, patents are granted and managed by the USPTO. However, unlike trademarks and copyrights, a patent must be applied for and granted to provide protections. The patent application process is complex and can be time-consuming. Still, it’s worth it if you want to protect your potentially valuable invention from IP theft.

Trademark vs Copyright vs Patent

Trademark

Trademark is often used to describe both traditional trademarks and service marks. A traditional trademark covers identifying words, phrases, symbols, and designs that distinguish goods from other products—service marks do the same for services.

Registration is not necessary to rightfully use your trademark, but it does provide additional protections. New business owners with a strong brand should consider trademark registration as a vital legal step when starting their business.

Registration Requirements

You do not need to register a trademark to use it on your products and services. Merely using the mark as part of regular business gives you rights to the image or phrase.

However, if you want the exclusive right to use the trademark connected with your products, it must be registered with the USPTO. Registration also provides public notice of ownership for the mark. It creates a presumption of ownership—which means people should think twice before using it!

To register your trademark, visit the USPTO website, and submit an application through the Trademark Electronic Application System (TEAS). Application fees start at $225 but may be higher. Expect to pay more if you need to request an extension or choose to work with a lawyer.

Once you submit your application, monitor your status using TEAS—it may take between three and six months to receive a response. Keep in mind it may take several years for the trademark to be registered.

Length of Protection

Trademark rights do not expire in a predetermined period of time because they are based on actual use. Your trademark will be valid for as long as you continue to use it in commerce and in connection with your goods or services.

Should You Trademark Your Business Name?

When you register your business with the state, your LLC or corporate name is protected at the state level—no other business in the state can operate with your company’s name. Therefore, if you plan only to do business in your filing state, you may not need to trademark your business name.

However, if you anticipate growing your business to a neighboring state—or nationally—trademarking your business name will give you the exclusive right to use it.

Register a Trademark With an Online Legal Service

While you can register a trademark on your own, you can save time by using an online legal service. IncFile will ensure your trademark is available, and if it is, file your trademark request for $199, plus federal fees.

Visit IncFile

Copyright

US copyright law protects “tangible mediums of expression.” This legal term refers to:

• Music
• Poetry
• Novels
• Paintings
• Architecture
• Movie scripts
• Computer software
• Other original, creative works

In general, a “copyright” is a bundle of rights connected with each work—everything from selling a work to duplicating it, displaying it, or modifying it.

Although a creator has copyright granted automatically to each of his original works, registration with the U.S. Copyright Office gives him the ability to enforce those rights in federal court.

Registration Requirements

Registration is not required to protect a work. Still, artists should formally copyright their work if they want the ability to litigate a piece, enter it into the public record, or demonstrate ownership with a certificate of registration.

To register, log in to Copyright.gov and select the type of work you want to copyright. You’ll then be directed to an online registration platform where you can submit an application for between $35 and $65.

Once an application is submitted, the copyright process can take from one month to 21 months—submit it as soon as possible. The length of time to register depends on:

• Complexity of the application
• How the application is submitted
• Payment method

Length of Protection

The length of copyright protection depends on who created the work, when it was created, and, where relevant, when it was published. If an individual creates a piece, the copyright will last for the life of the author, plus 70 years.

However, where the creator’s identity is unknown—or where the work was created for hire—protection extends for the shorter of 95 years from the date of publication or 120 years from creation.

What Is a Poor Man’s Copyright?

A poor man’s copyright is a fictional form of copyright, thought to be created when an artist or creator writes and dates a description of a work or idea and mail it to herself.

The point of this copyright strategy is to establish the earliest date on which the artist possessed the idea to prove ownership. Does this strategy work? No, it doesn’t—it’s not covered in relevant copyright law. It does not offer the same protections as registering your work with the U.S. Copyright Office.

Patent

Patents protect the unique intellectual property of inventors and designers. Common IP that can be patented includes:

• Machines
• Processes
• Manufactured items
• Chemical compositions
• New variety of plants

Unlike with copyrights and trademarks, inventors cannot get a patent without formally applying through the USPTO. Additionally, the patent application process is extremely complex and can stretch out over several years. Because of the complexity, we recommend hiring an attorney who specializes in patents. If you’re starting a business with a product that should have a patent, we recommend starting this process as soon as possible.

Application Process

The first step of the application process is to determine whether your invention can be patented—that is, whether your invention has already been publicly claimed.

To determine if the patent has been claimed involves conducting a comprehensive patent search, which can be extremely challenging. For that reason, we suggest hiring a patent attorney.

You’ll also need to determine which type of patent you need—utility, design, or plant—and compile the documents necessary to complete an application. Depending on the type of patent and whether you choose to work with an attorney, patent application costs typically range from $1,500 to $15,000 or more. Because of the application process’s complexity, it may take six months to several years before the USPTO grants the patent.

Length of Protection

The length of patent protection depends on the type of patent. For example, provisional patents are granted for one year, while the applicant pursues a formal patent.

Once filed, new design patents are good for 14 or 15 years after issuance. Similarly, once filed, utility and plant patents last 20 years from the application date.

File a Patent With an Online Legal Service

If you have the funds available, we recommend working with a local patent attorney—especially if it’s a complicated patent. However, if you’re starting or operating your business on a budget, consider an online legal service to submit your patent application. LegalZoom will submit your application starting at $199 plus federal filing fees.

Visit LegalZoom

Bottom Line

Protecting your intellectual property is an essential part of being an artist, creator, inventor, or otherwise operating a business. However, the available protections can be confusing, and some of the registration processes are complex.

The copyright registration process is fairly straightforward, but if you need to register a trademark or apply for a patent, we recommend hiring an attorney specializing in intellectual property law. If you don’t have the budget for a lawyer, consider hiring an online legal service like IncFile (trademarks) or LegalZoom (patents) to guide you through the process.