Trademarks vs. Copyright vs. Patent
These three areas of the law are vastly different, yet there is overlap between them. In some instances, more than one of these may apply to the product or item that you wish to make and/or sell. In this text our intellectual property attorneys will explain how these are different and how they are the same. Finally, we will answer the most common question among inventors and developers and business owners, how do they overlap?
Trademarks function as an indicator of source of a product or a service. For example, a trademark is typically used to protect brands, images or slogans used in the offering of goods or services to the marketplace. A trademark can include a word, logo, sound, visual article, product configuration, packaging configuration and/or color, by way of example. It may comprise an item that provides an indication of source of the product.
There are two types of patents that we are going to talk about (we will for the moment exclude plant patents that cover plant varieties), the utility patent and the design patent.
First, utility patents are used to protect new and useful inventions, including mechanical, and electrical devices, software, manufacturing processes and production methods, and any number of different products. Some examples of utility patents include mechanical devices (a medical device, a bag or a box, a brake caliper, a hanger, etc.), electrical devices (i.e., improvement to a toaster, a microwave, a sensor, solar panels, etc.), electronics (i.e., power supply, circuitry improvements, radio antenna designs, etc.), methods or processes (i.e., extracting improvements with the extraction of gold from ore, removal of sulfur from hydrocarbon fuel), a system (i.e., several machines together for welding automotive assemblies, etc.), software features (swipe to unlock, pull down to refresh, etc.). Generally, these include all types of inventions that have functionality.
Second, design patents are used to protect ornamental features of an article, an icon, and a graphical user interface, among others. Examples include the ornamental design of a Christmas tree ornament, a bottle shape, the ornamental design of a mouse or a laptop, the ornamental design of a refrigerator door, or a cabinet door, the ornamental configuration of an smartphone application icon, or screenshot.
Copyrights generally protect creative works, such as original literary, artistic, dramatic, or musical works.
While the rights are very distinct and each have different legal protections, it is possible to have some overlap between the different rights, for example, between trademarks and design patents, as well as between trademarks and copyrights.
For example, a typical smartphone has many utility patents that cover the various functional features of the device. This may include screen features, touch features, the button construction, certain chipsets, the antenna, etc. Additionally, a typical smartphone can also have design patents that are directed to the ornamental appearance of the phone or a part of the phone (for example, back or edge construction). Further, over time, the appearance of the phone can become an indicator of source. In other words, when that smartphone is positioned across the room, it is recognizable as being from a particular source (i.e., Apple or Samsung). In that situation, the shape has acquired distinctiveness and could be the subject of a trademark. Further still, the software forming the operating system or any of the applications could be the subject of a copyright. In this example, the same device can be the subject of utility patent, design patent, trademark, and copyright. Yet, sometimes different rights are covering a different aspect, in other situations, different rights are covering the same aspect, only in a different manner.
There are other situations where only one or two of these rights are applicable, and it is not always the case that all of these come into play, but the interoperability is something that is very important to understand and take advantage of.