Trademark vs Patent - What Is The Difference? And When I decide Which I Need?

Intellectual property is a vast and complex term. Many a time people are confused or have incorrectly used the terms in intellectual property law. They have spoken of “copyrighting” an idea or even “patenting” a book. To understand these terms, it is essential to know what is Intellectual Property and what all does it entail.

Considering how complex intellectual property law can be, it is understandable that many people – including authors, journalists, biz and tech bloggers, tweeple, etc. – confuse the terms and oftentimes speak/write of “patenting a book” or “copywriting a new gadget”.

The terms patent, copyright, and trademark are all used in the context of intellectual property. Although intellectual property or intellectual ideas are created in the human mind, intellectual property does not refer to the ideas. It is how the idea materializes itself and the end result that is protected with a patent, a copyright, or a trademark.

The design of a fuel-efficient car maybe patented but not the idea. The story or the manuscript of a book is copyrighted and not the idea of the book itself.  When you start a new company, the logo is trademarked and not the idea of creating a logo.

Trademark Vs Patent – What Is The Difference

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Trademarks 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 smell — that are used to identify the source of goods or services and distinguish them from the competition.

Patents on other hand allow those who create inventions to keep others from making commercial use of the inventions without the creator’s permission.

Generally, patent and trademark laws do not overlap. When it comes to product design, however — say, the design of a piece of jewelry or a distinctively shaped musical instrument — it may be possible to obtain a design patent on the ornamental aspect of the device (as distinguished from a utility patent for the invention, itself), while invoking trademark law to protect the design as a product identifier. For example, a surfboard manufacturer might receive a design patent for the appearance of its surfboard. Then, if the design is intended to be — and actually is — used to distinguish the particular type of surfboard in the marketplace, trademark law may kick in to protect the appearance of the board.

   Example of Trademarks:

Coca cola and Pepsi are two trademarks from same industry (beverages) which distinctly identifies source or origin of the goods as well as an indication of quality.

Trademarks in India are registered by the Controller General of Patents Designs and Trademarks, Ministry of Commerce and Industry, Government of India. Trademarks are registered under the Trademark Act, 1999 and provide the trademark owner the right to sue for damages when infringements of trademarks occur.

However, any trademark, which is identical or deceptively similar to an existing registered trademark or trademark for which application for registration has been made, cannot be registered. Also trademark that would likely cause deception or confusion or is offensive may not be registered.

  Examples of Patent:

“A patent is a right granted to the owner of an invention that prevents others from making, using, importing or selling the invention without his permission”

In simple terms it’s very much like what you could have imagined; It is a property, an intellectual property that you claim is only yours, you can use it for your own purpose and others need to pay you a royalty if they wish to use your property, or you can sell it out to someone. Now legally speaking it goes little deeper with the definition of patent.

Some of the finest examples are: Goldstar Co. Ltd., Qualcomm Incorporated, Samsung India Software Operations, ERSKINE Medical.

 When I Decide Which I Need ?

Now you’ve decided whether you need to register a trademark or a patent; you may be asking yourself, do I need a trademark attorney or patent attorney to register my trademark or patent or can I deal directly with the trademark or patent office?

The answer, as with any such question is, always, it depends. You are not required to have a trademark attorney or patent lawyer. attorney; however, this is a question, which in reality asks, what degree of risk you are comfortable with.

For e.g. : A medical doctor is not required to perform surgery on you; however, It is not recommend having surgery without one. Similarly, It is not recommend attempting to register a trademark or patent without an experienced intellectual property attorney.

The process of obtaining a trademark or patent is not simply filing some paperwork. The application process begins with an extensive search to uncover if your proposed name, logo, slogan or other proposed intellectual property is currently registered or unregistered but in use in your same industry.

Also there is the consideration that if during that name or logo search you uncover a similar trademark. Now what? Do you have to change your trademark? Can you still have your proposed trademark registered? The answer is (always): it depends. It depends on several factors.

Therefore, it is the trademark search and the ability to navigate the minefield of the application process where the skill of an experienced trademark service provider becomes the most valuable. It is the company’s professional experience, which is your greatest asset during this process.

Conveyed many times before, brand protection pays for itself, whether by peace of mind, or by preventing your competition from trading on your goodwill or by giving you the ability to truly develop your brand identity and set you apart from your competition.

Get Professional Legal Help with Your Patent-Related Questions

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Trademark and Patent laws can be extremely complex, typically requiring a background in both the law and engineering. If your inventions are at the heart of what your business does, you may want to contact a patents attorney for legal guidance.

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