Clarifying the Difference Between Patents and Trademarks

A common piece of advice liberally provided to all new or potential entrepreneurs by people in the know is to start by protecting their intellectual property. As recommendations go, it’s a sound one – intellectual property often represents a significant part of a business’ assets.

However, business gurus usually leave it at that and fail to provide any useful details on how exactly one should go about obtaining protection.

Luckily, this is exactly what we do at iGERENT. Without further ado, let’s get into it.

What is intellectual property?

Before we enter into details about what types of intellectual property there are, and how to protect them, we must first ask ourselves what intellectual property actually is, and why it is so important.

>According to one of the authorities on the subject, the World Intellectual Property Organization (WIPO), intellectual property refers to “creations of the mind”; it is intangible and as such sometimes difficult to define.

Intellectual property law aims to find a balance between protecting the rights of creators of intellectual property to benefit from their creation – so as to encourage innovation, technological progress and economic growth – and protecting the consumers’ rights to safe consumption of goods and services and access to a wide range of artistic and literary works.

IP protection is far from a new fad and the two keystones of IP recognition internationally are the Paris Convention for the Protection of Industrial Property from 1883 and the Berne Convention for the Protection of Literary and Artistic Works from 1886.

Industrial property and copyright

The two treaties mentioned above lay the basis for the protection of the two main types of intellectual property: industrial property on the one hand, and copyright (authors’ rights) on the other hand.

Generally speaking, copyright is what protects the rights of the creators of artistic, literary and, to some extent, scientific works. Under the Berne convention, such works are now protected as soon as they are created or published, and that protection extends all over the world – or at least in the countries that are signatories of the Convention. It is worth mentioning, though, that the length of copyright protection differs according to each country, which is why some works can have already fallen in the public domain in a specific country while still being protected by copyright in another.

Furthermore, in some countries, for instance in the USA, registering your copyright is a necessity if you need to engage in infringement actions against third parties. Regardless of whether you have registered it, though, you should also consider adding the © symbol to your work.

It can also be useful to register with an institution such as the American Society of Composers, Authors and Publishers (ASCAP) or the local equivalent in your country in order to facilitate the collection of royalties from the exploitation of artistic works.

Industrial property, on the other hand, is all about products and services offered in commerce. Historically, it would concern mainly manufactured products, hence the “industrial” part of the name, but with the transformation of society and the rise of the service industry, the name has lost some of its relevance and industrial property is increasingly applicable to services as well as products.

While Industrial property encompasses a wide range of types of protected items, from industrial designs to geographical indications, the two most widely-known – and most often source of confusion – are trademarks and patents.

Patents and Trademarks – a comparison

Patents protect an invention

Patents are rights granted to the owner of an invention, in the jurisdiction in which they are registered, to use and exploit their invention exclusively, preventing others from using the invention without the inventor’s explicit consent.

However, not every invention can be patented, and there are strict criteria that an invention must comply with so that a patent can be granted:

• Novelty: the invention must be novel – in the “never seen before” sense, and not just in the country where the registration is sought, but globally. This means that the moment the invention is presented to the public or published anywhere, it loses novelty and is therefore not patentable anymore.
• Non-obviousness or inventive step: the invention must not be the result of a combination of previous inventions or a mere step further from a previous invention. An invention would be considered obvious and therefore not patentable if someone could easily create the same invention based on publicly available knowledge in the field.
• Industrial application: an invention is not patentable if it cannot be used in an industry – the definition of industry should be taken in a very broad sense, as it can include agriculture, for instance, or astronomy.

So, concretely, what products do we use everyday that have been granted a patent? The list is endless. Take the most ubiquitous device of all: our smartphone. Without even taking into account the patents that went into building the device itself, it also makes use of many patented products or devices: navigation systems such as GPS, or communication and network systems such as 3G networks or Bluetooth systems.

It does make sense that those would be patented, considering how they still are somewhat novel to us – or at least to those of us who are older than 25 years old – but you might be surprised to learn that some objects that today seem absolutely commonplace once held patents: the safety pin, the toothbrush, the light bulb, the baby high chair, Post-It notes or Velcro, to name but a few.

Why is it, though, that they “once held patents” and do not anymore? Patents are granted for only a limited period of time – usually 20 years, but it depends on the country – and cannot be renewed. Once the patent grant has expired, anyone is free to manufacture and sell the product in question.

Trademarks, on the other hand, have an initial validity of ten years (in most countries) but can be renewed indefinitely. Incredibly enough, the first ever trademark to be registered in the United Kingdom, bearing number UK00000000001, is still in force today, having been faithfully renewed since January 1, 1876! It is a logo for the BASS & Co Pale Ale, for beer.

So, if patents protect inventions, what do trademarks protect?

Trademarks protect a brand’s identity

Contrary to what many of our prospective clients think, the purpose of trademark registration is not primarily to “prevent others from using [their] trademark”. The intended function of registered trademarks is to protect consumers, not traders – although they do end up protecting traders in the process.

A trademark is any type of sign (whether a name, a logo, a sound…) that can serve to determine the origin of a certain product or service – in other words, to identify the company behind it. For this reason, a trademark is always registered in association with certain products or services, and identical registered trademarks belonging to different companies can coexist, provided they are for very different products.

To protect a brand’s identity, it is often necessary to register several trademarks, each protecting a part of the brand: the brand name, the different logos, and in case the brand is used to commercialize different lines of products, the product line.

A concrete example can easily be made with car manufacturers. Not only do they need to register as trademarks their brand name and logo, they also need to register the name of each car model. In the case of Porsche, for instance, not only would they register this name and their famous logo, but also model names such as Carrera, Boxter, Cayenne… An international corporation can get to the point where they own hundreds of trademarks in a specific country, which is why most of them have a whole department dedicated to the management of their IP rights, including trademarks.

Though there are some limits to what can be registered as a trademark, if you think an element of your brand identity is used to identify the source of your products or services, then it is worth considering registering it as a trademark.

In case you have any doubts, our Trademark Consultants are at your service to help you define your trademark strategy, so there is no reason not to contact us!