The Difference Between a Trademark a Patent and a Copyright

If one has followed the recent news stories regarding the cancellation of the Washington Redskins’ trademarks, one has heard numerous reporters and “experts” use the terms trademark, patent, and copyright as interchangeable terms.

To be clear, a trademark is a word, phrase, symbol, design, or combination of those which identifies and distinguishes the source of particular goods or services of one party from those of another. By contrast, a patent is granted to the inventor of a new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof.

Similarly, a Copyright is a form of protection provided for the content of an original work of many genres including literary, dramatic, musical, artistic, and certain other intellectual works. Use in commerce is another factor that distinguishes a trademark from both a patent and a Copyright registration.

Whereas the issuance of Federal trademark generally requires usage in interstate commerce, the Patent Office has no such requirement for patent applications, and Copyright protection is afforded to both published and unpublished works.

The confusion is somewhat understandable in that most Americans are not well versed in intellectual property, and most online search engines utilized by the public make little differentiation between the three types of intellectual property. That being said, although there are substantive differences between the three types of protection, they are not entirely mutually exclusive in their potential impact, particularly on those seeking trademark registrations.

Given that there are many who mistakenly believe that the issuance of a Copyright registration protects the name of the work in addition to its content, a search of the Copyright Office records can often reveal potential conflicts and should be considered as a common law resource for many trademark searches, something that most if not all trademark search engines do not consider. This is especially true for new brand names or trademarks being considered for use in the music, publishing, film, or software industries. A search of the Copyright Office records will frequently reveal published or unpublished commercial works and entities (listed by title, author, or claimant) that do not otherwise appear in the trademark search databases or commercial brand name listings.

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