Differences Between Patents, Trademarks, Copyrights, and Trade Secrets

By: Jim Dossey, Patent Attorney, BS, MS, MBA

It is often difficult to distinguish between different types of intellectual property. The chart below illustrates the key differences between patents, copyrights, trademarks, and trade secrets.

Type of Intellectual Property

Definition / What it Protects

Method of Protection

Duration of Protection

Infringement Standard

Patent

A patent is a limited property right relating to an invention in exchange for public disclosure of the invention

File for US patent in the USPTO

File for International patent in the WIPO

For a utility patent, the term is generally 20 years from the earliest filing date of the application.

For design patents (based on decorative, non-functional features) the term is 15 years from the issue date.

Infringement occurs if the new invention falls within the claims of a granted patent. If a single element of the claim is missing from the new invention, the invention does not infringe the patent.

Copyright

Grants the creator of original work, such as writings, music, and art, exclusive rights to its use and distribution.

Copyrights are automatically secured upon creation of the matter.

However, it is advantageous to file for registration in the US Copyright Office

Generally, life of the creator plus 70 years.

Substantial similarity of protected elements between a copyrighted work and an allegedly infringing work.

Trademark

A trademark or service mark includes any word, name, symbol, device, or any combination used or intended to be used to identify and distinguish the goods or services of one party from those of others, and to indicate the source of the goods or services. Trademarks are used to protect a brand.

Common law trademark – automatically created if used in commerce

Trademark protection can last indefinitely as long as the owner continues to use the mark to identify its goods and services. Federal trademarks must be renewed every 10 years.

Likelihood of confusion – Are the marks sufficiently similar to cause consumer confusion as to their source or origin?

Trade Secret

A trade secret is a formula, practice, process design, instrument, pattern or compilation of information that is not generally known or reasonably ascertainable by which a business can obtain an economic advantage over its competitors.

Protection is afforded by non-disclosure (NDA), confidentiality, and, non-compete agreements

Indefinite, but must make reasonable efforts to maintain security

Competitors may lawfully obtain trade secrets through reverse engineering or employee poaching. If the competitor uses improper means to obtain the secret, such as industrial espionage, the competitor may be subject to a misappropriation claim.

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