For more, see Guide to Patents. A patent allows the creator of certain kinds of inventions that contain new ideas to keep others from making commercial use of those ideas without the creator's permission. Trademarks, on the other hand, are not concerned with how a new technology is used. Rather, they protect names of products and services, logos, and other devices—such as color, sound, and even smell—that are used to identify the source of goods or services and distinguish them from the competition.
For example, let's say Juan invents a new type of hammer that makes it difficult to miss the nail. Not only can Juan prevent others from making, selling, or using the precise type of hammer he invented, but he may also be able to apply his patent monopoly rights to prevent people from making commercial use of any similar type of hammer during the time the patent is in effect typically 20 years from the date the patent application is filed. Generally, patent and trademark laws do not overlap.
When it comes to a product design, however — say, jewelry or a distinctively shaped musical instrument—it may be possible to obtain a patent on a design aspect of the device while invoking trademark law to protect the design as a product identifier. For instance, an auto manufacturer might receive a design patent for the stylistic fins that are part of a car's rear fenders. Then, if the fins were intended to be—and actually are — used to distinguish the particular model car in the marketplace, trademark law may kick in to protect the appearance of the fins.
For more information about trademarks, see Nolo's Trademark Resource Center. For a clear explanation of the differences between patents and trademarks, and of the entire patent process, get Patents for Beginners by David Pressman and Richard Stim Nolo. Copyright protects original works of expression, such as novels, fine arts, music, audio recordings, photography, software, video, cinema, and choreography by preventing people from copying or commercially exploiting them without the copyright owner's permission.
Copyright laws do not protect names, titles, or short phrases. Trademark law, by contrast, protects distinctive words, phrases, logos, symbols, slogans, and any other devices used to identify and distinguish products or services in the marketplace.
Trademark law is primarily aimed at helping consumers to quickly identify the source of goods; the goal is to help consumers avoid confusion. Its recognizable apple-shaped logo is also a trademark. There are, however, areas where both trademark and copyright law may be used to protect different aspects of the same product.
For example, copyright laws may protect the artistic aspects of a graphic or logo used by a business to identify its goods or services, while trademark may protect the graphic or logo from use by others in a confusing manner in the marketplace. Similarly, trademark laws are often used in conjunction with copyright laws to protect advertising copy.
The trademark laws protect the product or service name and any slogans used in the advertising, while the copyright laws protect the additional creative written expression contained in the ad. For more information about copyright law, see the Copyright section of Nolo's website. With the exception of innovative designs, patents are closely associated with inventions and processes that are useful. By contrast, copyrights are often used to protect expressive arts such as novels, paintings, music, phonorecords, photography, software, and films.
While it is possible to get a patent on technologies used in the arts, copyrights are normally the mechanism for one artist to "own" his or her own creations, and prevent other artists from "stealing" it. For example, an inventor could apply for a utility patent on an innovative camera lens used to create a movie. For small businesses that don't plan to expand regionally or nationally, there's little reason to register your trademark. If you add the TM to your business name, you're protected by law, and unless a competitor starts to use the same name, you typically won't have a problem.
However, if you do business online throughout the states or overseas, a trademark is worth the effort. This is especially true if you find international businesses in the same industry. Yes and no. If one business has a trademark, and another business in the same industry uses it, that's a trademark infringement. However, two separate businesses in different industries can use the same trademark since it's not confusing to the consumer.
As soon as you start using an identifiable trademark, you are protected under common, state, and federal law. Federal law cannot protect your name in other countries. To get a trademark, you must apply in each country where you do business. Puerto Rico, Guam, and other U. Foreigners can apply for a U. Once you file for trademark registration, it takes 10 to 16 months to secure a final registration. During that time, continue to use the TM mark to avoid matters with competitors. You can file for a state or federal trademark at any time, but a state trademark provides protection only in that state.
A federal trademark protects you nationally, provided you are engaged in interstate commerce. Websites do not fall under this jurisdiction. Even if you aren't currently using a trademark, you can still file for registration. File an actual use application and note the first day of use. You can also file an intent to use application if you haven't started to conduct business, but have a trademark drafted.
Any business, person, partnership, or corporation can file for a trademark. In the eyes of the law, it's all about who came first. If you have an idea, but find it to be taken in your state, you have no legal recourse. You can keep others from using the trademark in the same industry, but not in different industries. If you sell flooring under a name and a company sells T-shirts under the same name, there is no legal action available.
The WIPO Lex database is a comprehensive search tool that allows you to search international treaties and national laws on intellectual property. The Madrid system for the international registration of trademarks provides a single procedure for the registration of a mark in several territories.
In a nutshell, you benefit from one application , in one language, paid in one currency. Use the database to search for trademarks, appellations of origin and official emblems. The Nice Classification is an international system used to classify goods and services for the purposes of the registration of marks.
From Champagne to Habanos cigars, the unique geographical characteristics of a product can be key for branding. The Lisbon System for the international registration of appellations of origin protects such products through a single registration.
Article 6ter is used to protect armorial bearings, flags and other state emblems of the states party to the Paris Convention. The WIPO Arbitration and Mediation Center provides trademark owners with efficient international mechanisms to deal with disputes over Internet domain names corresponding to their trademark rights. IP and Business Universities Judiciaries.
What is a trademark? How can I protect my trademark?
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