FREQUENTLY ASKED QUESTIONS
Some people confuse patents, trademarks, and copyrights. Although there may be some similarities among these kinds of intellectual property protection, they are different and serve different purposes.
Some of the differences between patents, trademarks, and copyrights are discussed below using materials summarized from the United States Patent and Trademark Office.
Please feel free to contact Lyon & Harr for additional information on legal fees and costs and how you can prepare for an initial meeting with our attorneys so that we can better assist you in protecting your intellectual property.
WHAT IS A PATENT?
A patent for an invention is a grant of property rights by the U.S. Government through the U.S. Patent and Trademark Office. The patent grant excludes others from making, using, or selling the invention in the United States. A utility or plant patent in force on June 8, 1995, is subject to either the 17 year term from grant or the 20 year term from earliest effective U.S. filing date, whichever is longer. A design patent term is 14 years from patent grant. The right conferred by the patent grant extends throughout the United States. The terms "Patent Pending" and "Patent Applied For" are used to inform the public that an application for a patent has been filed. Patent protection does not start until the actual grant of a patent. Marking of an article as patented, when it is not, is illegal and subject to penalty.
There are three types of patents:
Utility Patents: A utility patent may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, compositions of matter, or any new useful improvement thereof.
Design Patents: A design patent may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture.
Plant Patents: A plant patent may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
WHAT IS A TRADEMARK OR A SERVICE MARK?
A trademark is a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others. Similarly, a service mark is a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of a service rather than goods. The term "trademark" is often used to refer to both trademarks and service marks.
Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the USPTO and will be listed in the Principal Register following successful registration.
Owning a federal trademark or service mark registration on the Principal Register provides several advantages, including:
1. Public notice of your claim of ownership of the mark;
2. A legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration;
3. The ability to bring an action concerning the mark in federal court;
4. The use of the U.S. registration as a basis to obtain registration in foreign countries;
5. The ability to record the U.S. registration with the U.S. Customs and Border Protection (CBP) Service to prevent importation of infringing foreign goods;
6. The right to use the federal registration symbol ®, and;
7. Listing in the United States Patent and Trademark Office's online databases.
WHAT IS A COPYRIGHT?
A copyright protects works of authorship, such as writings, music, and works of art that have been tangibly expressed.