Patent, Trademark or Copyright?
The process and pitfalls of turning your big idea into a protected asset
on March 30, 2018
Updated on August 12, 2022
It popped into your head one morning in the shower—the groundbreaking invention, the innovative restaurant concept, the perfect premise for a novel. You’ve found your million-dollar idea. So what happens next?
To become intellectual property, an idea must solidify into an actual product, creative work or brand identity that is distinguishable from what already exists.
Intellectual properties fall primarily into three general categories: patents, trademarks and copyrights. Which are which?
“Patents might be applicable to an idea that’s manifested in a process or device,” says David Weinstein, a trademark and copyright attorney in Denver. “Copyright applies to books, art, software, music—things that people create. And then there are trademarks, which are brand names.”
Design patents typically have the most expensive and time-consuming process.
“In the patent world, the biggest mistake is that people start selling their product, or start showing it to their neighbors [before they get the patent],” says Marianne Timm-Schreiber at Merchant & Gould. She recommends a patentability search to determine if your idea can be protected or has already been patented. Anyone can search patent records online, but most IP attorneys have software that expedites the process—and they can help decide if a product idea infringes upon existing patents. If no conflicts are found, the attorney will schedule an invention disclosure in which you fully describe your invention, typically with a formal write-up. The attorney then uses that information to draft and file a U.S. patent application with the U.S. Patent and Trademark Office (USPTO).
If you can’t get one, don’t despair. Patents aren’t always required to bring a product to market. “Just because the idea is out there, as long as they’re not infringing on somebody else’s work, they could still sell their product and then trademark their brand and use branding as the best protection against copycats,” says Timm-Schreiber.
“Trademark rights don’t protect the product, but they protect the name for the product or the way it’s presented or packaged,” adds Scott Havlick, trademark attorney at Holland & Hart in Boulder.
Brand names and logos are most common, but many things that distinguish your product or small business are eligible for protection—colors, packaging, sounds, even smells. Colorado is a hotbed for food and beverage businesses, and though recipes are not protected by patents, Havlick says trademarks “provide a competitive advantage to prevent newcomers from using confusingly similar marks to compete unfairly.”
Trademark rights and trademark protections take effect when you begin using a trademark in association with a product or service, and last as long as you continue using the mark, says Weinstein.
Most attorneys recommend registering your trademark at the federal level. The first step is determining if your trademark is already registered, “before you get emotionally married to it,” says Havlick. U.S. trademark registration is typically inexpensive, especially compared with patent filing. “A trademark application is much less expensive than a patent application,” adds Havlick. “Always.”
In most cases, registering at the state level does not provide protections beyond those already afforded by common law. One exception in Colorado is the cannabis industry. “Marijuana is illegal under federal law, so a person cannot obtain a U.S. trademark registration for a product or service that involves the possession of marijuana,” says Miriam Trudell, shareholder at Sheridan Ross. Since cannabis is legal in Colorado, those products are eligible for state-registered trademarks.
Another common form of intellectual property protection is the copyright. “Whether we take pictures, write music, draw, doodle, write short stories or poetry,” Weinstein says, “it’s protected by copyright and can become an asset.” Copyrights last for 70 years beyond the life of the creator, so it is important to designate who will be heir to what is known as your residuary estate—because your best ideas may not reveal their full value until long after you’re gone.