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Intellectual Property: What is the difference between trademark, patent, and copyright?

While business owners and others are often concerned about the protection of their intellectual property, they are frequently unclear on the distinctions between trademark, patent, and copyright law.  

The term "trademark" is used as a general term to refer to any of the various types of intellectual property that protect names, logos, and slogans used in conjunction with the sale or offering of goods and services which are transported or distributed via interstate commerce regulated by U.S. law. The two primary types of trademarks that can be registered with the U.S. Patent and Trademark Office are Trademarks and Service Marks. Trademarks are used by their owners to identify goods, that is, physical commodities, which may be natural, manufactured, or produced. Service marks are used by their owners to identify services, that is, intangible activities, which are performed by the owner for the benefit of someone other than himself, either for pay or otherwise.  

An owner's rights in a trademark arise under common law. That means that a trademark owner has a cause of action to protect their mark from infringement whether or not the trademark is registered. But there are some specific benefits of having a registered trademark, especially at the federal level. Federal registration gives the owner nationwide constructive notice and evidence of his claim of ownership of the trademark, jurisdiction in the federal courts to enforce his rights along with the possible recovery of attorney's fees and statutory damages, a basis for obtaining registration in foreign countries, and the ability to file with the U.S. Customs Service to prevent importation of infringing foreign goods.

A patent is an intellectual property right granted by the U.S. government to an inventor to exclude others from making, using, offering for sale, or selling the invention throughout the U.S. or importing the invention into the U.S. for a limited time in exchange for public disclosure of the invention when the patent is granted. There are three types of patents. Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof. Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture. Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant. Ideas, inventions that are not useful (such as perpetual motion machines) or that are offensive to public morality, and literary, dramatic, musical, and artistic works all cannot be patented. Inventions must also be novel, nonobvious, adequately described or enabled (for one of ordinary skill in the art to make and use the invention), and claimed by the inventor in  clear and definite terms in order to be patented. Unlike under trademark law, there are virtually no common law patent rights that arise absent proper federal registration.

Finally, copyright is a  form of protection grounded in  the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression, whether or not they are published. Copyright protects literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. Like trademark, copyright protection exists whether or not the work is registered with the U.S. Copyright Office, but federal registration imparts a number of important benefits similar to the benefits of federal trademark registration.

Intellectual property is an extremely complex area of the law. Because it can be tricky and difficult to properly register a trademark, patent, or copyright or to determine the rights of an owner or the defenses available to an accused infringer, it's worth consulting an intellectual property lawyer on any of these matters that may affect you.