Imitation may be the sincerest form of flattery but, when it comes to your personal intellectual property, it is definitely the sort of compliment you’d want to avoid. Fortunately, protection against others stealing your idea is available through patents and trademarks, which are issued by the Patent and Trademark Office.
The nature of your intellectual property determines which of the two is appropriate, with a different registration procedure and protection rights applicable for each.
Nature of intellectual property and protection
A patent is relevant when the idea is something new, useful and non-obvious. It can be a number of things, including a process, an invention or a machine. A patent grants the property rights for an invention to the inventor, which serves to prevent all unauthorized usage. This is through providing the patent holder with the right to exclude others from making, using or selling the invention in question.
Trademark, on the other hand, is a form of protection to exclude others from the usage of a name, word, logo or phrase that a business utilizes to distinguish its goods from others. A service mark comes under trademark and is used when a service, as opposed to a good, is covered by the brand.
A trademark prevents others from copying a mark, or using one which is confusingly and deceptively similar. Unlike a patent though, it does not provide for an exclusion of others from selling the same good or service under a different brand name.
An application for a patent requires a thorough explanation of how the invention works and the purpose it serves. A ‘patent pending’ status is provided after the filing of an application, with full legal protection granted only upon approval. Once authorized, a yearly renewal fee is applicable in most countries to maintain the patent.
Such a formal registration procedure is not compulsory for a trademark, which can be established through usage in the marketplace alone in most areas. A registration procedure is available, however, and an application must meet certain criteria for the trademark to be authorized. This includes an appropriate identification of the goods or services by the trademark, as well as an absence of any confusing similarity to another established brand.
Both trademarks and patents can be legally enforced. However, while a patent lasts for a limited amount of time, usually 20 years, a trademark can, theoretically, last forever if actively used.