June 19, 2018

Trademark, copyright and patent: how they differ?

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Trademarks, copyrights and patents are three different legal instruments belonging to the umbrella term of intellectual property. Nevertheless, they differ significantly one from the other. Indeed, trademarks protect the source identifications of goods and services while copyrights protect original creative expressions. Patents protect new and useful inventions. They differ primarily in their nature, in their scope and in their purposes. Moreover, the way to obtain them as well as their duration are distinct. Concerning trademarks, they can take the form of either a brand name, a logo or a package design, or alternatively a combination of the three elements. Trademarks are used by manufacturers and merchants to distinguish their goods and/or services from similar ones and enable them to exclude others from using a confusingly similar trademark on the same or on closely related goods or services, in the same geographical area. Therefore, the primary function of trademarks is that to reduce consumer’s search costs on the market place. For this reason, trademarks, in order to be eligible for registration, cannot not merely describe the applicant’s goods or services. In other words, the distinctiveness of the trademark is a necessary criterion for registration. Registration -even though it is not mandatory to ensure the protection of a trademark as by its simple use the manufacturer or the merchant acquires trademark rights- is highly advisable even before use. The advantages of registration consist mainly on the nationwide protection, while in the case of trademark rights acquired through use protection is limited to the geographic areas of use; on the shifting of the burden of proof to anyone challenging those rights and on the limitation of the grounds for attacking the registration from the fifth year. Concerning the duration, trademarks last indefinitely as long as they are neither abandoned nor become a generic term, and as long as they are renewed every ten years.

Copyrights; differ from trademarks. They protect original literary and artistic expressions which can take the form of books, paintings, music, records, plays, movies or software. Indeed, the required criterion is that of originality, i.e. neither copied from another source nor so elementary that it lacks sufficient creativity. Copyright grants to the creator the exclusive right to reproduce the work, to distribute the reproductions, to display and perform the work publicly, to make derivative works and to authorise others to do so. No registration is needed in order to acquire these rights as copyright occurs automatically upon fixation of the work in a tangible form. Since copyright aims at encouraging and rewarding creative expressions, its duration is limited in time. More precisely, for works created after January 1st, 1978 (included) the duration of a copyright is 70 years after the death of the author. In the particular case of “work for hire”, however, the duration is either 95 years from publication or 120 years from creation, whichever is shorter.

Patents, differ from trademarks and copyrights. They confer on the patentee the right to exclude others from making, using, offering for sale and selling an invention within the territory of registration. The inventions eligible for patent protections are processes (chemical, mechanical or electrical), machines, articles of manufacture and composition of matters such as chemical compounds, combinations or mixtures. Moreover, in order for an invention to be patentable it should meet three requirements: novelty i.e. previously unknown to the public, non-obviousness i.e. not trivial for a person having ordinary skills in the relevant art and utility i.e. having a useful purpose. Since patents, similarly to copyrights, aim at incentivising new and useful inventions and configuration of useful articles, their duration is limited in time, generally to 20 years. However, the duration is limited to 14 years in the case of design patents. Moreover, patents are granted on a “first-inventor-to-file” basis, meaning that the patent is granted to the first inventor to file the application regardless of the fact that there exists an earlier independent invention.

IPzen helps you with the management of your IP rights, whether it concerns trademarks, copyrights or patents.