Trademarks, copyrights, patents… oh my! How do you know what kind of protection is best for your intellectual property (IP)? Let’s start by reviewing these 3 major players.
IMPORTANT NOTE: Intellectual property protections such as these do not necessarily prevent someone from using your brand name, original artwork, etc. Instead, these protections give you the ability to approach someone who is using your protected work and ask them to stop. In reality, these protections give you the ability to sue another person or business who is using your IP without your permission.
Trademark: typically protects brand names, logos, and slogans
Example: Kayla’s Amazing Business Name
Trademarks are fairly straightforward, but there are some things you should be aware of before applying to register your “mark.”
- Basic marks vs Design marks
Basic marks refer specifically to sequences of letters, like “Kayla’s Amazing Business Name.” This kind of mark protects the business name when it is used in any style or design, without any additional specificities. This might make more sense after describing a design mark. A design mark, as its named, only protects the design of the mark you’ve registered. So, if you register “Kayla’s Amazing Business Name” as a design mark, it will only be protected when its used in the exact design as you’ve registered–it’s only protected if someone uses the name in the same font, color, and general design scheme that you’ve registered.
Business or brand names are usually registered as a basic mark because you’re protected regardless the name’s design. Generally, logos are registered as design marks, because you want to protect the actual design of the logo, not just the words being used.
Class of goods and services
When you file for a trademark, you will register your “mark” under a certain “goods and services” category. For example, if you design clothing and want to trademark your business name, you would file your mark under category 025, which covers most kinds of basic clothing products. This is important because your protection only applies to your specific goods/services category.
For example: If there is another “Kayla’s Amazing Business Name” in the Clothing category, your registration will be denied. However, if there is another “Kayla’s Amazing Business Name” registered under the Health Services category, then you’re in the clear. There can be multiple trademarks for “Kayla’s Amazing Business Name,” as long as they are in separate goods/services categories. Search for your goods/service category here.
Likelihood of confusion
Goods and services categories are important because the USPTO takes the “likelihood of confusion” into heavy consideration when reviewing your application. The idea of “likelihood of confusion” is based on the fact that consumers should NOT easily confuse your mark with another.
For example: If you want to trademark “Kayla’s Amazing Business Name” but there already exists a “Kayla’s Amazing Business Name” in your goods/services category, your registration may be denied on the basis of “likelihood of confusion”–consumers could easily confuse the two marks.
Another example: Grinds Coffee and Grindz Coffee. The two are too similar to exist in the same goods and services category, so the second application will be denied.
It’s important to do your research before applying, because you’ll pay the application fee even if you’re not approved. Search the trademark database here. Trademarks are registered through the United States Patent and Trademark Office (USPTO) and can take anywhere from 2 months to 2 years to be approved. From my experience, a proper registration is usually finalized within 3-6 months. Trademarks are good for 10 years, with a check-in after year 5. Expect to pay $225-275 for trademark in a single goods/services category.
Copyright: typically protects artistic or literary works
Example: Kayla’s Original Novel
Copyrights are interesting because technically, every original artwork is automatically copyrighted as soon as you’ve created it. So this begs the question: Why register a copyright at all? Registering a copyright allows you to bring about a lawsuit for infringement of a U.S. work by helping you prove that you created the registered work on or before a certain date. Some people choose to forgo the registration and instead obtain a “poor man’s copyright” by mailing their work to themselves. Doing so provides a verified date, but does not list your copyright in the public registry list and is not considered legitimate declaration of ownership in court. If you want to make it official, it’s probably best to go for the registration.
Copyrights can be registered through the U.S. Copyright Office. Click here to visit their FAQ page: “Registering a Work.” Copyright applications tend to have a quick turn-around time; expect to wait up to 3 months for your approval. Copyrights last for the duration of the author’s life plus 70 years. At the time of this article’s publication, it costs $45 to file a single copyright.
Patent: typically protects inventions
Example: Kayla’s Totally Unique Product Invention
Patents are the most difficult type of IP protection to obtain. I would suggest that you look for a patent expert or attorney to help you with the filing process. However, here are some basic things to know when considering a patent.
There are three main kinds of patents:
- Utility patent: new or improved, and useful, product, process, or
machine. [provisional or non-provisional]
- Design patent: distinct configuration, surface ornamentation, or
- Plant patents: invents or discovers, and asexually reproduces, any
new variety of plant. [provisional or non-provisional]
Utility and plant patent applications can be filed with either a provisional or
non-provisional application. A provisional application is only good for one year; it’s meant to establish an early filing date for a future non-provisional application, displaying your intent to file. A non-provisional application contains the official invention description and provides official, formal protection for the patent.
Patents are generally approved in about two years, but it can take longer. Obtaining a patent is much more expensive than trademarks and copyrights, as the process can cost anywhere between $1-15k. I don’t have in-depth experience with patenting, and it can be a complicated process. So I usually advise my clients to find a patent attorney, local maker-space with knowledgeable inventors, or other reliable resources–I’d suggest the same to you. For some products, patents can be crucial; for others, patents really aren’t a need. Ask yourself: Is my invention truly novel? If so, a patent might be right for your creative business.
NOTE: The is no form of IP protection that will protect an idea. Learn more about IP protection to understand how you can partially protect your idea by protecting some of its tangible aspects.
So, after this basic introduction to trademarks, copyrights, and patents, what kinds of IP protection, if any, are right for you?
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Note: This article is meant to be educational, and is not intended to provide legal advice.