When do you need a trade mark, patent or copyright?

The terms trade mark, patent and copyright are known by most business owners, although the distinctions in meaning are not always understood. The terms are often used interchangeably, as in “I want to patent my brand”, or “how do I copyright my invention?”

However, each of these terms refers to a specific type of intellectual property.

Trade marks

A trade mark is the legal protection given to a brand (usually a brand element, such as a name or logo). Every business will have at least one trade mark. Trade mark law focuses on protecting brands and preventing confusion among the buying public.

Trade marks can be protected by registration. This means the trade mark is published on a public database and acts as a notice to others that trade mark rights exist in a particular brand.

In some countries (including Australia, New Zealand, the UK and USA), it’s possible to protect an unregistered trade mark. However, this is usually much more difficult, expensive and time consuming than seeking to enforce a registered trade mark.

Generally speaking, and with few exceptions, every business should register its core brand as a trade mark. Doing so will provide strong enforceable rights against others who might seek to trade off their work, and also reduces the risk that another trader might innocently adopt the same or similar brand in future (which can lead to confusion).

Patents

A patent is the legal protection given to an invention.

The underlying philosophy of the patent system is that in exchange for disclosing details of a useful invention (including information about how it works), the government will grant a monopoly over the commercial exploitation of that invention.

Most businesses will probably not develop inventions that qualify for protection as a patent. However, many new ideas or innovations on existing technology can qualify for patent protection. Whenever a business develops a product or process that is new and innovative, it is always worth a brief discussion with a patent attorney about whether it can be protected by a patent. A patent can often provide an extremely valuable commercial edge in the marketplace.

Generally speaking, it is necessary to apply for a patent before the invention becomes public knowledge. Once an invention is ‘in the public domain’, it will not be considered novel. It is therefore always a good idea to keep new inventions confidential until such time as you can talk to a patent attorney.

Copyright

Copyright is the legal protection given to various forms of original works.

Most commonly, it includes literary works, musical works and artistic works, but it also includes films, sound recordings and computer software. Most relevantly for small business, most documents, pictures or drawings produced by employees of that business would qualify for copyright protection.

The major protection offered by copyright is that it gives the owner of the copyright the exclusive right to reproduce the work, or a substantial part of the work (subject to some exceptions). However, it is important to realise that copyright only protects a particular expression of an idea, and not the idea itself.

The great thing about copyright protection is that it is automatic. Provided that a particular work meets the requirement for copyright protection, it applies automatically. Unlike a patent or a trade mark, there is no requirement to register the copyright, and no fees.

Another useful aspect of copyright protection is that in many cases the protection automatically extends to many different countries. This is to be contrasted with trade marks and patents, where protection must usually be sought separately in each country.

A major drawback of copyright can be proving that the person claiming to own the copyright is entitled to do so. Problems can be avoided by recording the creation date, place and author details of important works in the event that copyright needs to be enforced.

Some countries (including the USA and China) also offer voluntary systems for registration of copyright to assist copyright owners in enforcing their rights against infringers.

Find out more about proactively protecting your brand identity.