Patent Vs Trademark

Rich Goldstein

Founder & Principal Patent Attorney
man looking at whiteboard reading intellectual property

Patents and trademarks are different types of intellectual property rights that provide legal protection for your idea. Patents and trademarks protect different subject matter and provide the holder different types of legal rights and protections that can be asserted over others. 

Patent vs. Trademark

When it comes to a patent vs. trademark, which one is best for your intellectual property will depend on a variety of factors. 

Patent Rights

Under common law, a patent is a type of property right. Patents protect inventions. A patent gives the patent holder the right to exclude others from making, using, selling, or importing whatever is within the scope of the patent. Patent protection means you will have exclusive control over your big idea and can shut others out of the market. 

A person writing on a document

The United States Patent and Trademark Office is the government agency that administers patents and makes patent determinations.

Patent Requirements

There are three requirements for something to be patentable under United States patent law. It must be:

  1. Novel;
  2. Non-obvious; and
  3. Useful.

For an invention to be novel, it must be different from anything else that has previously been available in the world. For an invention to be non-obvious, it must not be obvious to a person of ordinary skill in the invention’s particular field. Finally, for an invention to be useful, it must meet three requirements:

  1. Practical utility;
  2. Operability; and
  3. Beneficial utility.

Patent Types

There are two main types of patents:

  1. Utility; and
  2. Design. 

A utility patent protects the way something is used and works. A utility patent prohibits others from making, using, or selling your idea without your authorization. 

A design patent protects the way something looks. This includes the shape and configuration of something, as well as the surface ornamentation that is applied.  In some cases, a design patent can protect both the shape and the ornamentation. 

Patent Applications

To obtain a patent, you must apply for one through the United States Patent and Trademark Office. A non-provisional patent application is the formal patent application that you will submit for your invention. Filing this application will mark your idea as patent pending

A non-provisional patent application must include the following things:

  • Application Transmittal Form or Letter;
  • Specification, including a description and a claim or claims; 
  • Drawings, when necessary; 
  • Oath or declaration; and
  • Required filing, search, and examination fees.

A specific patent examiner is assigned to your patent application. The patent examiner will issue office actions with questions and concerns that you will be allowed to respond to. Overall, the average time it will take to get a patent is 22-30 months from the date you file your patent application. 

The current average time is 24 months. This time frame will range depending on the type of patent you are seeking and the level of complexity behind your patent.

A seal for a document

Trademark Rights

Trademarks are a type of intellectual property right that protects a symbol, name, word, logo, or design used to represent the manufacturer of goods. Trademarks cover a specific, single mark. This single, specific mark is unique and is used to represent a business or its products. Trademark protection does not extend to any other related product. 

If you obtain a trademark, this offers the exclusive right to use that trademark. If you find someone else using that trademark, you can seek legal action against the individual or entity. 

There are three symbols that are typically used to denote a trademark:

  1. ™ – This trademark symbol is used after a logo or phrase to alert competitors that the symbol or phrase has been claimed by you, but a trademark application has not officially been submitted or granted.  
  2. ® – This trademark symbol stands for a registered trademark.  This means this trademark symbol is used for logos and phrases that have been officially granted by the United States Trademark Office.
  3. ℠ – This trademark symbol, also called a service mark logo, is used by entities that sell services rather than products.  These types of entities have the option to use this service mark logo. However, most entities still use the ™ trademark symbol for simplicity.

Trademark Requirements

There are four requirements to file a trademark and receive trademark protection with the United States Patent and Trademark Office:

  1. You must apply for the trademark under your actual name. This is because a trademark owner is the individual or entity who controls the nature and the quality of the goods sold under the trademark or the services rendered under that trademark. 
  2. In the application, you must specify the type of entity — eg., an individual, an LLC, a partnership, etc. — and its national citizenship. An applicant does not need to have a United States citizenship. However, you must state your citizenship on the application. 
  3. The application must be based on either of the following use of the trademark:
    1. Actual Use: 
      1. Actual use of a trademark is when the trademark is actually used in the public already and has already been placed on goods or services that are sold in commerce. The trademark must be used or displayed either in the sale or the advertising of services. 
    2. Intent to Use:
      1. An intent to use application requires a good faith statement that you plan to use the trademark in commerce. Because the trademark can be officially registered, you must use the trademark. 
  4. A drawing of the trademark must be submitted alongside the application. A specimen of the trademark must also be submitted. This is a real-world example of how the trademark is used on goods or in connection with a service. This could be an advertisement, an ad, a brochure, or a photograph.  

Trademark Applications

Trademark applications for trademark protection are filed with the United States Patent and Trademark Office. These applications can be filed online. This is the same office that is used for patent applications. Trademark applications cost from around $225–$400 for each class of good or service. This application fee is not refundable if your application is rejected.

Upon submission of your trademark application, the application is assigned to a specific trademark attorney. This attorney reviews your application and may issue office actions to you. You will then have the opportunity to respond to these office actions. Ultimately, and after back and forths, a trademark is ideally ultimately issued. 

A pile of documents in a shelf

How Long Patents Last

Patent right terms depend on the type of patent you have acquired. Utility patents are good for a period of 20 years from the date of filing the nonprovisional patent application for the invention. This term of 20 years can be subject to adjustments and extensions, which are explained in more detail below. 

Utility patents are the main types of patents that are issued. These patents protect the intellectual property of novel products, machines, processes, or compositions of matter that are considered useful. It protects the way something is used and works. 

A design patent is good for a period of 15 years from the date of issuance of the patent application for the design invention. This 15-year period can be subject to adjustments and extensions, which are explained in more detail below. 

A design patent protects the intellectual property of the shape, appearance, or other attributes of the way something looks.  You can apply for both a utility and a design patent for the same invention if your invention has both a useful application as well as design features you want to protect.

How Long Trademarks Last

A trademark registration lasts for an initial period of ten years. The owner of a trademark may continually renew their trademark registration in consecutive ten year periods so long as the owner meets the legal requirements for post-registration maintenance and renewal and file all of the necessary documentation in a timely manner. 

Between the fifth and sixth year after registering for a trademark, the trademark owner needs to attest to either the continued use or the excusable nonuse of the trademark in connection with the goods or services involved in the trademark registration. 

The trademark owners must also file a combined Declaration of Use (or Excusable Nonuse) and Application for Renewal between the ninth and tenth year after registration, and every 10 years thereafter. This must attest to the continued use or excusable nonuse of the trademark. 

Patents vs. Trademarks

At the end of the day, the most comparable comparison may be between a design patent and a trademark. These two offer fundamentally different types of protections. A trademark identifies the source of a product or service. Design patents, on the other hand, identify and protect the ornamental appearance of a unique design as it is applied to a specific product. 

Enforcement of Patent vs. Trademark

Infringement of a patent versus a trademark differs. Trademark infringement requires a finding of a likelihood of confusion between two marks where the potential infringer does not have trademark priority.  

Alternatively, patent infringements take place when an accused design looks substantially similar to a design that is patented according to the eyes of an ordinary observer. 

In general, trademark infringement requires an assessment of confusion between the source and a product. Patent infringement does not require this. Instead, patent infringement requires a side by side visual representation that compares a patented design with an accused design. 

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