Podcast Episode 23—Trademarks, Copyrights, Patents, & Trade Secrets—What’s the Difference?

Podcast Episode Timestamps

00:00 — Overview of the basic differences between trademark, copyright, patent, and trade secret.
01:08 — Intro
01:32 — TRADEMARK—distinguishing the source of goods and services and avoiding consumer confusion.
02:19 — Generic terms are unprotectible
02:33 — Common law rights
02:38 — Registering with the USPTO gives rise to statutory rights.
02:43 — Duration of registration is unlimited, so long as use continues and registration is properly maintained.
03:05 — Tradenames are not automatically trademarks.
04:28 — COPYRIGHT
04:38 — “Author”
04:50 — “Writings”
05:21 — Scope of copyright has expanded over time and now extends to eight categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.
06:07 — Not names, logos, and slogans.
06:23 — Life of the author plus 50 years.
06:33 — PATENTS
07:03 — Duration: 20 years from filing the application for utility patents; 15 years for design patents.
07:18 — Public policy behind protecting patents.
07:37 — TRADE SECRETS
08:08 — Under Texas law, a trade secret is (1) a secret; (2) used by a business; that (3) gives the business a competitive advantage over those who don’t know or use it.
08:35 — Comparing trade secrets to patents.
09:33 — Takeaways from this episode.
10:20 — Subscribe, check the show notes, and email or schedule a call with your questions.
10:54 — Outro

Intellectual Property Can be Confusing

It’s very common for non-lawyers (as well as lawyers who don’t focus their law practices on intellectual property) to mix up the different types of intellectual property—trademarks, copyrights, patents, and trade secrets.  This post provides the basic differences between trademarks (designed to identify the source of goods or services and avoid consumer confusion), copyrights (designed to protect creative expressive works), patents (designed to grant a limited monopoly for use of inventions and processes in exchange for public disclosure), and trade secrets (aimed to protect business secrets that provide a competitive advantage so long as reasonable measures are taken to maintain the secrets).  Those are the basic differences.  Now, I’ll dig into a bit more detail about what each type of intellectual property is designed to protect.

Trademark

A mark is any word, name, symbol or device, or any combination of those items used by a person to identify and distinguish that person’s goods or services from the goods or services of others, thereby distinguishing the source of the goods or services. 

A trademark is different from a copyright or a patent. A copyright protects an artistic or literary work and a patent protects an invention.

Trademarks protect words, slogans, logos, colors, or other symbols used to designate goods that are originated, sponsored, or endorsed by the owner of the mark. Generic terms are unprotectable. Otherwise protectible trademarks can become generic through “genericization.” Trademark owners may take steps to reduce the risk of genericization including educating businesses and consumers on appropriate trademark use, avoiding use of their marks in a generic manner, and consistently enforcing their trademark rights.

The owner of a mark can sue anyone who uses a mark that is likely to lead to confusion as to the origin, sponsorship, or endorsement of the goods or services associated with the mark.  Use of a mark gives rise to common law rights. Registration gives significant advantages by giving rise to statutory rights. Term of registration: 10 years from date of registration; renewable for additional 10-year periods if mark is still in use (affidavit of use, including specimens, must be made between the fifth and sixth year after registration, or the registration will be canceled).

A corporate name is not a trademark, although it can function as both a trade name and a trademark under certain circumstances (such as when the corporate name serves to identify the source of goods or services). Reservation of a corporate name through a state agency or formation of a corporation or other filing entity with a particular name will not establish trademark rights in the name. While a company name may be used as a trademark , trade names perform a very different function from trademarks and service marks. Specifically, trade names identify a business entity while trademarks and service marks identify products or services and the goodwill associated with them.

While trademarks and service marks may be federally registered, trade names may not. Registrability of a term as a trademark or a service mark, when it is also a business name, hinges entirely upon the manner in which the name is used. This distinction between trade name use and either trademark or service mark use is frequently a very difficult one to make. It depends upon the likely reaction of consumers upon looking at the label or advertisement in question.

Copyright

The U.S. Constitution grants to Congress the power to protect the “writings” of “authors” [U.S. Const., Art. I § 8]. The word “author” is construed broadly to mean any person or entity who is a creator or originator. Similarly, the word “writings” is interpreted to include any physical rendering of the fruits of creative intellectual or aesthetic labor. Congress has gradually expanded the scope of copyright to protect new forms of expression in the various copyright statutes it has passed over time.

The current copyright statute extends protection to “original works of authorship fixed in a tangible medium of expression.” Works of authorship currently include the following eight categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. These categories illustrate the general area of copyright subject matter it’s not necessarily everything the scope of “original works of authorship” that the law is designed to protect. New or newly significant forms of expression may be protected if they are within this general area of subject matter

Literary works are works expressed in words, numbers, or other symbols regardless of the nature of the physical objects they are recorded in—such as books, manuscripts, microfilm, tapes, or disks. Computer programs, for example, are protected as literary works. Audiovisual works are works, such as motion pictures, consisting of a series of images intended to be shown by a machine, and may include accompanying sounds. Pictorial, graphic, and sculptural works include works such as photographs, prints and art reproductions, maps, globes, technical drawings, diagrams, models, and architectural plans. However, the design of an article with a utilitarian function (such as a hammer) can receive copyright protection only to the extent that the artistic features are capable of independent existence from the utilitarian features.

Sound recordings are works embodying the fixation of musical, spoken, or other sounds, but not including any sounds accompanying an audiovisual work. The copyright interest in a sound recording is separate from the interest in the musical, literary, or dramatic work performed on the recording.

An architectural work is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes not only the arrangement and composition of spaces and elements in the design, but the overall form. However, the work does not include individual standard features.

The remaining categories, musical works, dramatic works, and pantomimes and choreographic works, are not defined by the statute because they have fairly settled meanings

Names, titles, slogans, and other single words or short phrases are not subject to copyright. But, protection may be available under the law of trademark or under some other theory such as unfair competition.

Works created on or after 1978 receive copyright protection for the life of the author plus 50 years.

Patent

A patent is the type of intellectual property that gives its owner the legal right to exclude others from making, using or selling the invention (i.e., a monopoly) for a limited number of years in exchange for publicly disclosing the invention’s details.  In the United States patents are divided into two categories—utility patents and design patents.  Utility patents last for 20 years from the date the patent application is filed.  Design patents last for 15 years from the date of filing the patent application.

Reasons for protecting patents in the way we do is to create an incentive to invest in research and development and to maintain a record of details of inventions in the public record, even after the monopoly ends or after production of the invention ceases.

Trade Secrets

An alternative to patents is trade secrets.  I’ve previously published entire blog posts and podcast episodes on trade secrets, linked here [Ep010, Ep011, Ep014, Ep018].  So, I’ll keep this brief.  Generally, under Texas law, a trade secret is (1) a secret; (2) used by a business; that (3) gives the business a competitive advantage over those who don’t know or use it.  To benefit from TUTSA (the Texas Uniform Trade Secrets Act), the business needs to take “reasonable measures” or reasonable steps to maintain the secrecy of the trade secret.

The benefits of a trade secret over a patent include that it does not have a definite duration (i.e., it doesn’t expire) and public disclosure of the trade secret is not required, which is beneficial in a world of ubiquitous copycat knock-offs.  On the other hand, reverse engineering of trade secrets is legal and permissible, assuming no one violates a legal duty in contributing to the reverse engineering.  Another benefit of trade secrets is that they don’t just apply to inventions, but to business information too, such as customer lists and internal processes. 

Takeaways

Although intellectual property terminology can be confusing, I hope this post will help you understand the basic differences between trademarks, copyrights, patents, and trade secrets.  Remember, trademarks are aimed at identifying the sources of goods or services and avoiding consumer confusion; copyrights are designed to protect creative expressive works; patents are designed to grant a limited-term monopoly for use of inventions and processes in exchange for public disclosure; and trade secrets are aimed to protecting business secrets that provide a competitive advantage so long as reasonable measures are taken to maintain the secrets.

Disclaimer: This audio and blog post are for informational purposes only and should not be misinterpreted as legal or other professional advice. If you have a legal question, you should consult with an attorney in your jurisdiction. Thank you for tuning in to Keith Law, PLLC.

(Photo by MART PRODUCTION from Pexels)