Trademarking, patenting and copyrighting are intellectual property protection terms that are too often confused by many people. If you are a new business startup owner, a product manufacturer, an author, composer or inventor, it pays to know the difference between forms of intellectual property protection, what protection mechanisms are available for which category, and how these compare with one another.
Understanding the difference between these concepts helps you answer questions such as those regarding getting a trademark on a logo, the importance of trademarks registration, trademarking a business idea, registering a trademark yourself, which type of patent should you apply for, what the procedures are for applying for a trademark, service mark, or patent, how to protect trade secrets, how to enforce copyrights, what are mask works, what form of protection do you use if you have developed a software application and many more.
Under U.S. intellectual property laws, there are six basic legal mechanisms available for protecting your intellectual property and your rights associated with your intellectual property. These are trade secrets, trademarks, patents, design patents, copyrights and mask work protection.
Each legal mechanism protects a different form or aspect of intellectual property. Below is a brief overview of each of these mechanisms, followed by a summary list that will help you compare and understand the different U.S. intellectual property protection mechanisms.
Trade Secret
Keeping things secret is the oldest form of intellectual property protection. Obviously, if your competitors don't know about your business or technology, or how your technology works, then they can't copy your information. A trade secret in its basic form, therefore, helps keep technology and business information secret to prevent competitors from copying the technology or information.
Trademark
A trademark (or service mark) identifies the source or origin of a product (or service), helping, therefore, to distinguish the goods or services of one company from those of another. Although trademarks do not prevent your competitors from copying or reverse-engineering your product, they do protect the goodwill and sales value of your reputation and that of the product. In short, a trademark protection prevents your competition from attempting to trade on your company's reputation and profit from your unique brand.
Design Patent
The term "industrial design" generally refers to the appearance and non-functional aspects of a product. A design patent protects the ornamental (the nonfunctional) appearance of a product. In the United States, design patents typically protect industrial designs.
Utility Patent
A patent is the grant of a privilege such as the exclusive right to make, use, or sell an invention. Patents are enforceable only within the territory of the government that has granted a patent to the intellectual property owner, hence the existence of various treaties and conventions such as the International Convention for the Protection of Intellectual Property (Paris Convention) and the Patent Cooperation Treaty (PCT), which allow patents to be more easily granted across various countries.
In a nutshell, patent protection is available for inventions and inventive concepts embodied in a product. It prevents other parties from making, using, or selling any product that embodies the patented concepts of the intellectual property.
Copyright
A copyright protects the form of expression of an idea, as opposed to protecting the idea itself. It is a statutory right provided mostly to authors of a literary or artistic work, such as a book or musical composition. In general, a copyright prevents the unauthorized copying of artistic or literary aspects of the copyrighted work.
Mask Work
A mask work is a "series of related images, however fixed or enclosed" that represents three-dimensional patterns in the layers of a semiconductor chip. Mask work protection is used to protect intellectual property embodied in semiconductor chips (masks) and prevent others from reproducing, importing, or ditributing chips that embody the work. This mechanism for protecting intellectual property was developed because historically, developers and manufacturers of semiconductor chips could not in any practical way stop their competitors from appropriating their circuit layout and production masks, and none of the existing forms of legal protection mechanisms were effective in providing the protection required for the developmental aspects of the semiconductor chip.
Now that we have briefly looked at the different forms of legal mechanisms available for protecting your intellectual property under U.S. law, let's take a brief look at how each of these forms of protection compare with one another:
Intellectual Property Protection Mechanism - Trade Secret
Trade Secret - Intellectual Property Protection Term
The intellectual property protection term of a trade secret is potentially infinite.
Trade Secret - Scope Of Intellectual Property Protection
A trade secret protects anything that can be kept secret. A trade secret, however, does not offer protection against independent development.
Trade Secret - Compatible Concurrent Forms Of Intellectual Property Protection
Intellectual Property Protection Mechanism - Trademark
Trademark - Intellectual Property Protection Term
The intellectual property protection term of a trademark is potentially infinite.
Trademark - Scope Of Intellectual Property Protection
A trademark offers protection against other parties trading on the trademark owner's reputation and eliminates any potential source of confusion regarding the origins of products or their affiliation.
Trademark - Compatible Concurrent Forms Of Intellectual Property Protection
- Trade Secret
- Design Patent
- Utility Patent
- Copyright
Intellectual Property Protection Mechanism - Design Patent
Design Patent - Intellectual Property Protection Term
The intellectual property protection term of a design patent is 14 years from the date of issue.
Design Patent - Scope Of Intellectual Property Protection
A design patent protects only the ornamental features of a design or intellectual property.
Design Patent - Compatible Concurrent Forms Of Intellectual Property Protection
- Utility Patent
- Copyright
- Trademark
Intellectual Property Protection Mechanism - Utility Patent
Utility Patent - Intellectual Property Protection Term
A utility patent offers intellectual property protection for 20 years from filing date of application
Utility Patent - Scope Of Intellectual Property Protection
A utility patent protects the concept of the invention as set forth in the claims.
Utility Patent - Compatible Concurrent Forms Of Intellectual Property Protection
- Copyright
- Design Patent
- Mask Work
- Trademark
Intellectual Property Protection Mechanism - Copyright
Copyright - Intellectual Property Protection Term
Copyright offers intellectual property protection for the life of the last surviving author and 70 years or work for hire. The protection offered is the shortest of 75 years from publication, or 100 years from creation.
Copyright - Scope Of Intellectual Property Protection
A copyright protects only the form of expression, not the substance or content of the intellectual property.
Copyright - Compatible Concurrent Forms Of Intellectual Property Protection
- Trademark
- Design Patent
- Utility Patent
Intellectual Property Protection Mechanism - Mask Work
Mask Work - Intellectual Property Protection Term
A mask work offers intellectual property protection until the end of the 10th calendar year after registration, or the first commercial exploitation of the work, whichever is first.
Mask Work - Scope Of Intellectual Property Protection
A mask work protects the property against use of reproductions of masks in production of competing chips.
Mask Work - Compatible Concurrent Forms Of Intellectual Property Protection
- Trade Secret
- Trademark
- Utility Patent
Resources & Information
For more details and information on trademarks, patents and protecting your intellectual property, you should either consult a trademark or patent attorney, visit the website of the U.S. Patents Office, or for a good reference book, see Michael A. Lechter's "Protecting Your #1 Asset - An Intellectual Property Handbook
".
