About Trademarks, Copyrights, and Patents


Tom deciphers the clear distinctions between Trademarks, Copyrights, and Patents, and notes when sometimes the lines get a little fuzzy.

Featuring Tom Merritt.



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Episode Script
Man why can’t I copyright that name?
This is my trademark invention?
I’m going to patent that song?
Confused why that group lawyers is mad at me for saying all that?
Don’t be.
Let’s help you know a little more about the difference between copyright, trademark and patents.

First let me be clear this isn’t legal advice. And it isn’t going to dig deep into the seemingly endless nuances of copyright, trademark and patent law.
This is the top level for those of you who see stories about all three and they seem to blur together and contradict each other. At the end of this I don’t expect you to be experts in any of these three things. But I hope you’ll be able to broadly tell the difference between all three.
Let’s start with a trademark. These are sometimes, as in the US, differentiated between products and services. In the US a product gets a trademark and a service gets a service mark. For our purposes here we’re just going to refer two them all as trademarks.
Trademarks are used to identify the source of the product service. In olden times I might make Tom Merritt’s bakery. And maybe Sarah Lane also has a bakery. And when someone asks where the muffins came from they could say Tom Merritt or Sarah Lane. But if somebody came along and started making muffins and selling them as Tom Merritt’s and I wasn’t involved I’d want to stop them.
Eventually business got more sophisticated than one person making a thing right? So brand names came along like Bunny Fresh bakery. And you’d want to make sure that only baked goods form the Bunny Fresh company could be called Bunny Fresh baked goods.
But then somebody came along and started offering Bunny Fresh accounting services. Because the lady who started it loved bunnies or something. That’s probably OK right? We don’t need to get the government involved. Nobody is going to confuse Bunny Fresh bakery with Bunny Fresh accounting services.
But then somebody comes along and starts Bunny Fresh baking powder. Whoa. Is that too close? Is that confusing.
And what about the bakery that calls itself Bunny French? Too close? Is it OK if they stick to baguettes?
Bring on trademark law.
The International Classification of Goods and Services or Nice Classification is generally used worldwide to keep us having to decide all but the edge case. It defined 45 trademark classes. Class 30 covers pastries and baking powders so bad luck Bunny Fresh baking powder. Your trademark probably won’t be granted or protected since Bunny Fresh bakery was there first.
Bunny French bakery might end up in a hearing. The law might find it likely that there could be confusion between Bunny Fresh and Bunny French and not allow Bunny French to use the name.
But generally as long as there isn’t confusion, two companies can get a trademark on the same name. For instance the Linux line of laundry detergents is not likely to be confused for the operating system, so Linux soap does not infringe on Linus Torvalds trademark of the name Linux.
But confusion isn’t the only standard for protecting a trademark. We won’t go too far down this road but there’s another aspect I’ll mention called dilution. That’s where someone uses a trademark outside the class, in a Non-competing market, but it could still have a negative effect on the trademark. This usually requires a mark to be distinctive famous or unique. It’s why you don’t see Coca-Cola automotive or Sony Bakeries.
And there are lots of other aspects. Don’t forget that trademark can apply not just to a name but a slogan, logo and even a design. Burberry’s check pattern is trademarked. Sounds and smells can often be trademarked. In general if it is capable of distinguishing a good or service it might serve as a trademark.
One last thing. You can trademark a word that is in common use IF you’re not trademarking it for the same thing that it’s commonly used for. Blackberry the tech company has a trademark on the name Blackberry. Because they don’t deal in fruit. Same for Apple.
But you may have a harder time getting a trademark if it’s a common expression. For instance Lebron James applied to trademark Taco Tuesday so he could market his videos celebrating the tradition of eating tacos on Tuesday. The USPTO denied the mark because it is a common expression. WHICH is apparently what Lebron wanted. He filed the trademark to make sure nobody could come after HIM for selling shirts that said Taco Tuesday on them. Lebron was defending Taco Tuesday for all of us.
One other thing about trademarks– Is there a use it or lose it provision? A lot of people mix this one up and it gets really thorny in the exceptions depending on which country you’re in. But generally speaking you have to keep using your trademark to keep it. Generally if you can’t show you used the trademark for five years or so, someone else can take it. People very frequently confuse this with copyright.
So let’s talk copyright! Copyright is not a trademark. It’s not about what you call it. It’s about what it is. Copyright is meant to protect the expression of creativity, usually for the life of the author, sometimes even longer as in the US. It’s generally protecting creative work, usually artistic, literary, educational or musical. So books, films, poems, choreography, paintings, and songs.
Songs is an interesting example. Composition and performance are two separate copyrights. If I write a song, I have a copyright on that song. If I perform a song, I have a copyright on the recording of that performance. To perform it I had to get permission to use the song. But the performance itself is my own copyright.
Also you can’t copyright characters. Mickey Mouse is not copyright protected. But you still can’t use Mickey Mouse in your work without permission. Why? Steamboat Willie, a cartoon with Mickey Mouse in it is copyrighted. And copyright law protects derivative works. So you can make anthropomorphic mice all day long just not one that looks too much like Mickey Mouse as LONG as the copyright protection on Steamboat Willie is valid.
And don’t forget things like fair use. Various jurisdictions have something like it that give exceptions for infringing copyright for purposes usually around education and commentary or because such a small portion of the work was used that it wouldn’t compete with the original.
Copyright is not a method of doing something. It’s not an idea. It’s the thing itself. You can’t copyright the idea of alien films. You can copyright your alien film that you wrote and shot. Another interesting example is recipes. That’s usually considered an idea so recipes can’t be copyrighted. But you can copyright your presentation of the recipe.
So what? Everyone can steal your idea? No. That’s where Patents come in!
Patents generally protect an invention. Patent protection gives the owner control over who gets to make, use or sell their invention. Again jurisdictions vary but patents mostly need to be man-made, useful and non-obvious. In the US you can’t patent an idea, it has to be a process, a machine, a product you can manufacture or a composition of matter. In other words a thing. You can’t patent a mathematical formula itself you have to use it do something and patent that process. You know. Like software.
That man-made one is interesting. You can’t patent a gene itself. That’s a natural object. But you can patent a use for that gene. Man-made strains of bacteria for instance have been granted patent protection in the US.
Patent protections range from 10-20 years– depending where you are– but they are limited to encourage invention but not keep inventions locked up from general use for too long. That’s one of the issues with software patents where the industry moves so fast that even 10 years of protection could mean the invention is useless by the time patent protection expires.
My friends who are lawyers. I now apologize. I know I missed so many many nuances but I hope in oversimplifying I didn’t do too much damage to the underlying concepts. I wanted to emphasize the differences between these categories. So let me hasten to remind listeners who aren’t lawyers, this is not a comprehensive explanation of any one of these categories just a primer to help you understand the difference between them.
So to review. Trademarks last as long as you use them and protect how you identify your product or service.
Copyright protects the thing you made for a lifetime or more.
And patent protects an invention for a decade or two.
Now, I hope you Know A Little More about the difference between trademark, copyright and patents.

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