What is Trademark vs. Patent?

A trademark protects a symbol, name, word, logo, or design used to represent the manufacturer of goods. A patent gives property rights to an inventor for a new product, preventing others from making an identical product. Many companies use both to protect intellectual property, although the two are not interchangeable.

What sets a trademark apart from other legal protections is that it only covers a single mark. That protection might be part of a logo, a symbol, a phrase, a word, or a design. But a trademark does not extend any protection to the products manufactured by the company that owns it. Another business or person can legally produce the same goods or offer the same services unless those are patent protected.

Filing for trademark protection for your company's logo or catchphrase is worth considering because it lessens confusion for consumers. When someone is shopping for a product, he or she should be able to immediately pick out a specific brand. Without a trademark, others can easily copy your logo or create a similar one, leading to a loss of brand loyalty.

When your mark receives trademark protection, no one else can copy, use, produce, or profit from it. If someone does try to create a similar mark, you have legal rights to sue for damages. That could include profits lost during the time when the other person or company sold products under a similar mark. If you can prove that the similarity caused confusion among consumers, you are more likely to win the case. Examples of well-known trademarks include the Nike "Swoosh" logo, the McDonald's "Golden Arches" and the brand name "Coca-Cola."

The requirements to qualify for a trademark are not as strict as those required to qualify for a patent.

On the other hand, a patent protects an invention. It restricts others from making, selling, or using a similar product as long as the patent is in effect. After the patent term ends, that idea is no longer protected and becomes public property. The term of a patent depends on the type.

There are three main types of patents:

  • Utility
    • A utility patent protects how a product works or is made. You can file for a utility patent on just about any type of invention, including machines, computer hardware and software, furnishings, and pharmaceuticals. In order to qualify for a patent, the invention must be novel and non-obvious. The term of a utility patent in the U.S. is 20 years.
  • Design
    • A design patent protects the ornamental appearance of a product. You can file for a design patent on something that already has a utility patent. For example, if you create a new and unique design for a handbag, it qualifies for protection. But the functionality, shape, use, and construction of the handbag fall under a utility patent. The term of a design patent in the U.S. is 15 years.
  • Plant
    • A plant patent protects a new variety of plant, but it must be able to reproduce asexually to qualify under this patent. The term of a plant patent in the U.S. is 20 years.

Patent protection is only available to inventions that meet the new and non-obvious standards.

Another difference between a trademark and a patent is the term and option to renew. A trademark term is ten years, but if you are using the mark, you can renew the protection in ten-year increments. A utility patent term is 20 years and a design patent term is 15 years. You cannot renew a patent once the term expires.

A trademark does not protect the exclusive or unique nature of a product, nor does a patent protect the exclusive nature of words, symbols, logos, or other similar designs that represent a company or entity.

A third option for legally protecting your intellectual property is a copyright. This protection extends to an original work of authorship, whether published or not. Examples include novels, short stories, paintings, music pieces, poetry, content on a website, copy in a brochure, instructions in a user guide, etc. You can recognize a legally copyrighted piece when you see the symbol, a C encircled. A copyright restricts others from unauthorized copying, selling, or using of the content.

You can legally register your copyright, but you technically hold copyright protection when you present the work in a tangible form. The benefit of legal registration of a copyright is the option to take legal action against another entity for infringement.

Why is Trademark vs. Patent Important?

It's important to know whether your business qualifies for a trademark or a patent or both. It's also important that a business owner understands the differences and applies for the correct one. Applying for a trademark when you need a patent or vice versa, wastes time and money. Going through the process of filing an application for either takes a while, although a patent application takes longer.

Reasons to Consider Using Trademark vs. Patent

If you have a unique logo, design, symbol, phrase, or word, these all qualify for trademark protection. With a product, a design on a manufactured item, or a plant, you'd need to file for the proper type of patent.

Deadline

There is no firm deadline to file a trademark. However, the filing date on an application for a trademark with the United States Patent and Trademark Office (USPTO) becomes very important. If another person or business tries to trademark something identical or similar to your mark, that date helps the USPTO decide who filed first. Waiting too long to file could leave your business unable to use the mark.

A patent does have a deadline. You must file an application with the USPTO within 12 months of introducing your invention or design in a public setting. The public introduction could be at a trade show or in a printed publication. If you don't submit an application within the 12-month timeframe, you lose the opportunity to patent your idea.

There is a loophole when filing for a patent. The standard application is for a non-provisional patent, and the term for this is 20 years. But if you aren't able to file within the 12-month period, you can file a provisional patent application. This alerts the USPTO of your idea but gives you an extra 12 months to work on the non-provisional application.

The USPTO does not grant provisional patents. When you file this application, the purpose is to extend the timeframe. You can't legally hold a provisional patent on the product. However, once you submit your non-provisional patent application, you can use the words "patent pending" on your product and any materials associated with it. When you receive final approval from the USPTO, you replace "patent pending" with the patent number.

What Could Happen When You Apply for a Trademark vs. Patent?

Some companies choose not to file for trademarks on their logos, phrases, and other intellectual property. If you go this route, be aware that you have little to no legal protection against someone using your mark. Without a trademark, you also run the risk of having your customers confused about what products your company makes. You could lose their loyalty and suffer the financial impact of this decision.

Filing for a trademark does come with a cost, although it's cheaper than filing for a patent. The average filing fee is between $225 and $600. Processing of the application takes between six and 16 months. You can use your mark on materials during this time. But if your mark isn't unique enough to qualify for trademark protection, you may need to take it off your materials.

If you do choose to submit a trademark application, you can only use the registered symbol after your application is approved by the USPTO. During the time that your application is pending, you can legally use the TM symbol with your mark.

A registered trademark provides legal ownership of a mark that sets your company apart from competitors. Trademarks tend to protect businesses within specific industries, while patents are more general and can span across a variety of classes.

One example of this is using certain wording within your logo for an athletic equipment manufacturing company. That wording would be protected from infringement among other businesses in your same industry, as long as you filed the application under that class or those classes. But a company in a completely different class could use similar wording without infringing on your trademark.

Not filing for a patent also comes with risk. Patent protection prevents others from stealing your idea and passing it off as their own. If you have an idea that is novel and not obvious, you can profit from this idea. But without a patent, you don't have any protection. You also lose the opportunity to license or sell the idea to other companies, since they can just make the product themselves.

Filing for a utility patent is an extensive process. It involves producing prototypes, drawings, and other information about your idea. The basic fee to file is between $70 and $280, depending on the size of your business. But there are other fees that come along during the process, so it could cost several thousand dollars. Utility patents take up to three years to process.

Design patent fees are lower than utility patent fees. The processing time isn't usually as long. But to qualify for a design patent, you have to submit detailed drawings of every angle of your design.

Some people choose not to go through the patent process because it seems like too much work. But if your idea is unique enough, it's worth the time and money to protect your intellectual property.

Frequently Asked Questions

  • Do I need a patent or a trademark?

If you're trying to protect a unique mark that identifies goods from your company, you need to apply for a trademark. If you want to protect a product or the ornamental design of a product, apply for a patent.

  • How long does it take to get patent approval?

All three types of patents take one to three years to go through the approval process with the USPTO.

  • How long does it take to get trademark approval?

Trademark approval through the USPTO typically takes between six and 16 months. You can continue using the mark while your application is in process. Adding the TM (trademark) or SM (service mark) symbol to your mark helps stake your claim over this unique design.

Steps to File

Filing for a trademark:

  • Review the Trademark Electronic Search System to make sure that your mark is unique. If you find something similar, your mark probably won't qualify for trademark protection.
  • Fill out the trademark application and file it with the USPTO. Include the design or words exactly how you plan to use them.
  • Keep track of the status of your application through the Trademark Status & Document Retrieval System. You'll find your application there within 14 days of electronic filing.
  • Once you receive approval, you can add the registered mark to your logo.

Filing for a patent

  • Search existing patents extensively to make sure nothing like your idea already exists
  • Fill out the correct patent application (utility, design, or plant) and file it with the USPTO.
  • If you're submitting a design patent, you may choose to hire an experienced design patent drafter. The application requires a specific format and all views of the item from every angle.
  • Keep track of the status of your application through the USPTO website.
  • Once you receive approval, you can add the patent number to your product, marketing materials, website, and any other medium.

If you're considering trademarking or patenting your intellectual property, take time to review the differences so you know which will best protect your idea. If you need help with trademark vs. patent, you can post your question or concern on UpCounsel's marketplace. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law. They average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.