How do Trademarks differ from Copyrights and Patents?



A trademark is a word, phrase, symbol or design, or combination of these elements, that identifies and distinguishes the source of the goods of one party from those of others.  There is also a range of less traditional trademarks covering categories such as color, sound and smell.  While common law rights may exist without registration, registration provides an increased level of protection.  A service mark similarly distinguishes the services of one party from another.
United States Patent & Trademark Office (USPTO) – Trademarks


Copyright provides for a set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. Copyright does not protect ideas, only their expression. In most jurisdictions copyright arises upon fixation and does not need to be registered; however, registration is typically required for enforcement purposes.
Library of Congress – Copyright Office


A patent confers upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time.  Patents are broken down into two categories – Design and Utility.  Patent rights are rights of exclusion – regardless of your own use, you have the right to exclude others from using your patent.
USPTO – Patents


What is the difference between the notations TM or SM and the ®?

An individual or business may use the TM (trademark ) or SM (service mark) symbols to alert the public that they claim rights in the respective mark, regardless of whether they have applied for or been granted a registration for the mark.  On the other hand, the federal registration symbol ® may only be used after a mark has been registered by the USPTO.


Why is it important to register my intellectual property?



While trademark rights in the U.S. originate with use, as opposed to registration.  However, registration provides several additional benefits, including, but not limited to the availability of statutory damages, the exclusive right to use the mark, national protection, and the ability to record the mark with U.S. Customs.
Trademark Application


Copyrights in the U.S. exist at the time the work is created. As with trademarks, registration is beneficial for a number of reasons, which include, the ability to bring an infringement suit, potential for statutory damages if registered within 3 years or publication, and the ability to record the work with U.S. Customs.
Copyright Application


Without a registration, no enforceable patent rights exist.
Patent Process


How long does a trademark last? What about a copyright? A patent?



A trademark is registered for a term of 10 years and is continually renewable for 10-year periods, so long as the mark is continually used in interstate commerce.
Trademark FAQs


A Copyright is valid for the life of the author plus 70 years.
Duration of Copyright


A patent is valid for 20 years from the application date and can not be renewed.
Patent Term


Are Meditation and Arbitration the same? No – while they are both forms of Alternative Dispute Resolution (ADR), mediation and arbitration are very different processes.

Mediation– although usually mandatory in the context of litigation, mediation is non-binding and involves a neutral third party acting in the role of a “shuttle diplomat” between the parties to a dispute.  The mediator’s role is to find a compromise that enables the parties to settle their dispute without having to roll the dice and devote the time and resources to a trial with an uncertain outcome.

Arbitration – often provided for in contracts, arbitration is a more formal process than mediation.  An arbitration procedure encompasses a streamlined procedure for bringing the parties to a hearing on the merits of their dispute.  The arbitration hearing is ordinarily presided over by a 1- or 3-person panel, which issues a substantive ruling at the end of the hearing.


Can use of copyrighted material be considered “Fair Use”?

The Fair Use Doctrine in copyright law provides a limited exception to exclusive right provided under copyright law and includes things such as, commentary, criticism, news reporting, research, teaching, library archiving and scholarship. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Fair Use Doctrine


Intellectual protection on the Internet seems overwhelming, which aspects should I be most concerned with?

  • Domain Names

Ensuring that you proactively register the domain names that are most important to your business is an important first step.  Keeping new domains in mind when the business creates new products or campaigns will save you a great deal of time and money down the road.  If you find that a third party has registered and/or is using a domain which infringes upon one of your trademarks, in addition to the usual infringement enforcement options, which may include cease and desist letters or litigation, you may also have the option of filing an action under the Uniform Dispute Resolution Policy (UDRP).

  • Third Party Websites

You may encounter websites using your logo on the site without authorization, offering counterfeit products bearing your marks, and/or making unauthorized use of your copyrights.  You have a variety of options to deal with unauthorized use of your intellectual property on such websites, in addition to cease and desist letters or litigation to the site operator, you may also have a course of action against the web host or ISP.  Additionally, if a copyright is involved you may consider utilizing the Digital Millennium Copyright Act (DMCA).

  • Business-to-Business & Business-to-Consumer Websites

Whether it be a an auction site, a trade board, a classified ad site or another form of B2B or B2C website, you will often find that these sites have policies against intellectual property infringement and also provide procedures for take-down of infringing listings.

  • Social Networking Websites

A variety of issues may exist on social networking sites from unauthorized use of a logo or copyrighted material, counterfeit goods, or even another business operating under a name which infringes your rights.  Similar to a number of the B2B and B2C sites, a number of the social networking sites have similar polices and take down procedures.

  • Search Engines/Paid Advertising

Paid advertising and search engine issues can be a concern from both a legal perspective and a business perspective.  In addition to the infringement issues, businesses often find themselves bidding against others for use of their own trademarks in paid advertising results.  Another concern from a business perspective is the use of click-through advertising on top of the paid advertising search results, adding another layer of cost to the business before the potential purchaser reaches the brand owner’s site.