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’s 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applications and Copyright protection is afforded to both published and unpublished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A search of the Copyright Office records will frequently reveal published or unpublished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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