What You Need to Know about Trademarks, Patents, and Copyright
Trademark vs. Patent vs. Copyright
So many of our readers ask questions about trademarks, patents, and copyright. (not to be confused with copywriting–which is all about marketing.)
“Are trademarks and copyright the same thing?”
“Do I need to trademark my business right away?”
“How do copyrights work?”
“When do copyrights start/expire?”
And on and on!
And if you don’t know anything about copyrights, trademarks, or patents, you’re in the right place!
Starting a successful business is such hard work, and you wouldn’t want someone else to copy or steal your business ideas!
This is why it’s so important to understand the difference between patents, trademarks, and copyrights.
It’s not a huge surprise that many online business owners, bloggers, and coaches don’t understand the legal difference between these terms.
We wanted to create this guide to help you break down the “legalese” so you know how to protect your intellectual property, what you can protect, and when you need the different kinds.
It can seem downright daunting if you’re not in law, so we wanted to help you break it down.
Then if you decide you need a trademark, patent, or copyright, you can seek legal advice armed with the knowledge of some of the best ways to protect your business.
Before we get started though, have you considered if you’re running your business legally?
There are certain documents you need to have in place when you first create your business’ website. And if you’re missing these pages, you could be liable and potentially even sued!
Check out our Entrepreneur’s Legal Bundle, which includes templates for the three legal pages you need to have on your website!
Before you go chasing waterfalls (TLC fans??) and getting your trademark forms ready for every logo, saying, and brand name, we need to define what a trademark is so you can have a better understanding of it!
The United States Patent and Trademark Office defines a trademark as:
“A word, phrase, symbol, and/or design that identifies and distinguishes one party from those of others. A service mark is a word, phrase, symbol, and/or design that distinguishes the source of a service rather than goods. Some examples include brand names, slogans, and logos. The term “trademark” is often used in a general sense to refer to both trademarks and service marks.”
This means you can trademark a variety of different things as a business owner (and even as an individual!) You can even trademark non-tangibles like the symbol you use for a logo.
Apple’s logo of the apple with the bite has been trademark. The McDonald’s famous arches or the “M” is another famous trademarked logo.
You can also trademark phrases.
Think: McDonald’s “I’m lovin’ it” and even Nike’s “Just do it.”
Then there are the new phrases that have come into the common vernacular like Frisbee, Band-Aids, Jacuzzi, and even Photoshop. These are all legally protected trademarks even though pretty much everyone defines any type of disc as a Frisbee.
Photoshop has become a verb! But if another brand used the word photoshop, they could get into trouble with trademark infringement!
When Trademarking is Important
Trademarks are important because they help protect your business. They can help prevent other businesses from trying to steal your symbols and phrases like your logos and catch-phrases.
If you add a (™) to your logo and slogan, it means you will have an “unregistered trademark.” Though it isn’t a legally registered trademark, it can still provide you with some protections called “common law.”
The only problem about unregistered trademarks is that it generally only provides protection to the region where the trademark is used. If you catch others using your trademarked logo or brand name, you can demand that they stop using it without a license. You can even take steps legally.
Registered trademarks (which is when you go to the USPTO and register your trademark) provide more rights.
It gives you rights across the entire U.S. if it’s a valid mark.
And you can even make it easier to prevent counterfeiting. It is also eligible for incontestability.
Most bloggers, coaches, and online business owners won’t need a patent. My friend on Facebook thought she would need a patent for her hand-drawn stickers, but what she actually needed was copyright protection or a registered trademark.
It is defined by the USPTO as:
“a property right granted by the Government of the United States of America to an inventor “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted.”
A patent helps protect inventions and alternatives to certain inventions.
The lightbulb is probably the most famous patent.
(Fun side story– we all remember Thomas Edison as the “inventor” of the lightbulb because he has the patent for it in the U.S. He received the patent in 1880, but Humphry Davy created the first electric lamp in 1802 and Warren de la Rue created a lightbulb in 1840.)
GPS, Bluetooth, iPhones, and drones are also famous examples of patents.
So if you are creating or inventing something new, you might need to get a patent.
Copyright is more well-known than the others because it has caused quite the controversy in a number of different industries. The music industry has become rife with copyright issues.
(Taylor Swift is an example of this in terms of her big blowout with Scooter Braun. The record label had ownership of the master recordings of her songs because she sold them the rights in her contract!– This is why contracts are important, people! Make sure you read them closely!)
The literary industry is also well known for its copyright lawsuits. For example, a bunch of publishers like HarperCollins (which publishes romance novels) Penguin Random House (a big 5 publisher), and more have a lawsuit against the Internet Archives for copyright infringement for materials used in the National Emergency Library Project.
So if you don’t want to get caught up in a lawsuit or legal drama, it’s important to be aware of what you have rights to.
The USPTO defines it as:
“A form of protection provided by the U.S. law to authors of ‘original works of authorship’ fixed in any tangible medium of expression. The manner and medium of fixation are virtually unlimited. Creative expression may be captured in words, numbers, notes, sounds, pictures, or any other graphic or symbolic media.”
One of the big concerns of bloggers, Youtubers, etc. is the “fair use” doctrine where you can use small pieces of a work for “criticism, comment, news reporting, teaching, scholarship and research.”
Now the biggest piece of information you need to know is that your works are automatically protected.
The U.S. copyright law created on January 1, 1978, revealed that a work is automatically protected by copyright when it is created.
However, it’s important to know that automatic protection isn’t complete protection. The internet is rife with plagiarism, particularly when it comes to photos and written work.
If you really wanted to create a lawsuit, you would need to be able to prove that you’re the original creator of the work.
There is another option, though. You can have a formal copyright registration. That provides proof that you’re the creator of the work and if you notice that someone is using your material, you can send them a cease and desist letter.
If that doesn’t get them to stop, it might be time to seek out the expertise of an intellectual property lawyer.
The Difference Between Patent, Copyright, & Trademarks
The main difference between the Trademarks, Copyright, and Patent is what it protects.
Trademarks: protect your logos, symbols, slogans, etc. as it pertains to your services or goods.
Patents: protect your inventions (hello next lightbulb inventor 😉 ) or alternatives to inventions.
Copyright: protects your expression like your books, your songs, lyrics, and even artistic works.
Some businesses will want to apply for all of them to protect your business fully. But many don’t need all of them.
What You Can Trademark and Can’t
Most of your business’ brand elements can be trademarked. For instance, you can register for a trademark for your:
- Unique brand name
- Sounds, smells (funky, right? However, it would take years to prove that it represents your business. But Hasbro recently applied for a trademark for the scent of Play-Doh.)
As long as you can demonstrate that these things represent your business, you can get them trademarked.
What You CAN’T Trademark
However, there are also a number of things you CAN’T trademark.
For example, you can’t get a trademark for the following
- Generic symbols, phrases, or words (think “fun” or “love”) ♥️
- Descriptive words (including a surname. You can get it trademarked, but it is MUCH more challenging and it would take YEARS to prove it to the courts that it is representative of your business.)
- Symbols that are representative of the U.S. Government. 🎖
Some things can be trademarked, but it would be incredibly difficult. Things that are simply descriptive and are difficult to distinguish from others, things that include geographic locations, and generic names.
What You Can Patent & What You Can’t Patent
Patents help protect inventions or alternates to already established inventions. If you want to apply for a patent, you will need to be able to prove that it isn’t obvious, that it has utility, and that it’s novel.
You would be able to patent things like:
- A new process or method (for example, a new way to make cement)
- A tool or other object (think a pencil or a post-it note)
- A machine (like a drone)
- A new composition (like pharmaceuticals)
- A new variety of plant (weird, right? But if you are able to create a transformed or mutant plant, you could get a patent for it. So Dr. Brewer’s hybrid plant clone in the Goosebumps story “Stay Out of the Basement” could be patented if it was real.(Or is it actually real?? Dun. Dun. Dunnnnnn.))
However, there are certain things you can’t patent like:
- An aesthetic creation (hand drawn stickers)
- A discovery, mathematical method, or scientific theory (the theory of everything)
- A presentation of information (like this blog post… whoa… meta…) 👀
- A procedure for therapy, surgery, or diagnosis that is practiced on animals or humans.
- A method for a computer program, business, mental act, or game. (Think scrum)
What You Can Copyright and What You Can’t Copyright
Copyright law can often be incredibly broad. Every creative expression (even if it’s a doodle on a napkin– hello, Picasso’s butt! I mean the sketch of buttocks, not the actual buttocks of the artist himself. I’m pretty sure those can’t be copyrighted but they also can’t be copied… ) can be copyrighted.
The creator automatically holds the copyright of it, as I mentioned above.
So there are certain things that ARE protected by copyright like:
- Computer software
- Modes of operations
- Artistic works
- Your grandmother’s diary that you found in the attic
And here’s what’s important for you photographers, business owners, and bloggers out there. Here’s what is protected by copyright:
- And original authorship on a website.
However there are some things that are a bit more tenuous.
For example, a recipe.
The listing of ingredients isn’t subject to copyright. However, the substantial literary expression in the directions, explanations, or collection of recipes could be copyrighted.
However, there are a number of things you CAN’T copyright.
- Names (sorry, Beyonce) 👑
- Fashion 💅
- Facts (like the fact that Nintendo trademarked the saying “It’s on like Donkey Kong” in 2010)🙊
- Works done by the U.S. Government 👩🔬 🧑🔬👨🔬
- Titles (sorry Dowager Countess of Grantham)🏰
- Short phrases (could be trademarked tho…)
- Slogans (samesies– could be trademarked…)
- Sightings of Elvis (Thank you. Thank you very much.)👀
Now there are a number of caveats for each situation (if you see Elvis in another country, you might have a shot).
But every picture, video, design, audio file, book, and sculpture is protected at least to some degree.
Final Thoughts: The Difference Between Trademarks, Patents, and Copyright
Many people often confuse the legal terms of trademarks, patents, and copyright. Some even use them interchangeably.
But now you know they protect different kinds of things. Hopefully, you have a better idea of what’s already protected and where you need to protect your business or brand.
Legally protecting your business is vital for your success.
If you aren’t sure if you’re blogging legally, make sure you check out the legal store for the latest legal templates you’ll need to protect your business.