Trademarks are considered intellectual property, just like copyrights and patents, but the rights conferred under trademark law differ considerably from copyrights and patents. While some businesses have patents for unique inventions and/or copyrights protecting original works, the majority of businesses have trademarks. Even if your business has not registered a trademark with the U.S. Patent and Trademark Office (USPTO), you still have certain protections under common law.
Read about the difference between trademarks, copyrights, and patents below.
Trademarks versus Copyrights
Trademarks and copyrights, while distinct and separate, can often overlap. Copyrights protect creative works such as writings, visual art, music and audio recordings from unauthorized reproduction. If someone wants to reproduce or sell a copyrighted work, they must first get the permission of the copyright holder.
Trademarks, on the other hand, protect phrases, words and symbols used to identify a product and signify its origins. Trademark rights prevent someone from using a trademark in a way that would cause significant consumer confusion about the source of goods for sale. While copyrights generally aren't available for titles and phrases, a trademark might be.
Trademark rights don't prevent the reproduction of a trademark, but they do prevent someone from using a trademark in a way that would lead consumers to believe the good they were buying came from somewhere it did not.
Trademarks and copyright sometimes co-exist in the same work. For example, suppose a company creates a stylish logo to promote its products. The company owns a copyright in the logo, and (assuming the logo meets the standards for trademark protection) could own a trademark in the logo as well. The copyright prevents someone else from reproducing the logo, while the trademark rights prevent any use of the logo in the marketplace that may confuse consumers as to the origin of goods.
Trademarks versus Patents
Patents give inventors a monopoly on the manufacture, use or sale on certain types of inventions. Patents are available for useful inventions, certain types of plants and designs of products. The kind of patent most people are familiar with is the utility patent, which protects useful inventions. For example, if Fred comes up with a revolutionary new mousetrap design, Fred can get a patent over the new mousetrap that will prevent anyone else from making, using or selling that particular type of mousetrap for the life of the patent.
Trademarks and patents overlap less frequently than trademarks and copyrights do, but it is still possible. When an inventor comes up with a distinctive product design -- a uniquely-shaped musical instrument, for example -- it's possible to get a patent over the design of the instrument while also obtaining trademark rights over the use of the instrument's shape to indicate the product's origins.
Confused? Get Legal Help with Your Trademarks Today
Chances are, your small business will have some sort of intellectual property worth protecting, typically trademarks. Even honest mistakes, such as unknowingly using a business name or mark already under use, can get you into legal trouble. Contact a trademark law attorney if you have additional questions or concerns.
See FindLaw's Intellectual Property section to learn more about patents, trademarks, and copyrights -- and how they differ from one another.