Do I Need a Patent, Trademark, or Copyright?

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: copyright, trademarks, and patents. Which is which?

“The answer,” says intellectual property attorney Catherine Farrelly at Frankfurt Kurnit Klein & Selz, New York, “is that it depends on what the invention or idea is. There is no protection for mere ideas under intellectual property law. There has to be a concrete expression of the idea for it to be protectable.”

Copyright: Protecting Creative Works

One common form of intellectual property protection is copyright. “Whether we take pictures, write music, draw, doodle, write short stories or poetry, it’s protected by copyright and can become an asset,” says David Weinstein, a trademark and copyright attorney in Denver, Colorado.

Copyrighted works created by an individual author have protection for 70 years beyond the life of the creator. For works made for hire, anonymous, or pseudonymous works, the term is 95 years from publication or 120 years from creation, whichever is shorter. Therefore, it is important to designate an heir to your residuary estate, as your best ideas may not reveal their full value until long after you’re gone. Under copyright law, the artist has exclusive rights to their work.

Trademark: Protecting Brands

“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, Colorado.

Brand names and logos are most common, but many things that distinguish your product or small business are eligible for federal trademark protection: colors, packaging, sounds, and even smells. 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 mark in association with a product or service. Those legal rights last as long as you continue using the mark, says Weinstein. It’s smart for entrepreneurs to register multiple trademarks when starting a new business. They should prioritize registering marks currently being used in commerce to identify their goods or services.

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 the patent application process.

In most cases, registering at the state level does not provide protections beyond those already afforded by common law. One exception is states that have legalized cannabis. “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 in Denver. However, it’s possible to get state-registered trademarks in states where cannabis is legal.

Patent: Protecting Inventions

“In the USA, patents are a limited-monopoly right to exclude others from practicing your invention,” says Amy Goldsmith, an intellectual property attorney at Tarter Krinsky & Drogin, New York.

Design patents have one of the most expensive and time-consuming filing processes.

“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 intellectual property lawyer Marianne Timm-Schreiber.

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 through the United States Patent and Trademark Office (USPTO).

If you can’t obtain a patent, 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.

Key Differences and Overlaps in Types of IP

“Patents might be applicable to an idea that’s manifested in a process or device,” says Weinstein. “Copyright protection applies to books, art, software, music — things that people create. And then there are trademarks, which are brand names.”

As their names imply, the U.S. Copyright Office handles copyright registrations, while the U.S. Patent and Trademark Office (USPTO) handles patent and trademark protections.

A single company could have copyrights, trademarks, and patents. Take Apple, for example. The company has utility patents for its technology developments. It has trademarks for the company name and logos. It is also a copyright owner for the artistic works it produces, such as photography, advertising, and writings.

How To Choose the Right IP Protection

A new business owner may need all of these intellectual property protections and possibly trade secrets protections as well.

If you think what you’ve created is patentable, do not talk about your idea. Intellectual property attorney Gina Shishima, with Norton Rose Fulbright US, New York, explains: “Using your idea in public, selling it, or otherwise letting a number of others know in a non-confidential setting about it could compromise the novelty of your invention and, ultimately, make it difficult to get a patent later.”

And do your research. To go through the patent process, your idea must be novel, and non-obvious to people in relevant fields. If you file, Shishima says, “An examiner for the USPTO will search for similar things, whether an item or a method, to evaluate whether those standards are met.” So before filing to become a patent owner, “Do a search to determine whether other people or companies have made, sold, patented, or otherwise disclosed to the public your invention or something like it.”

Even after getting a patent, you might have to do it all over again in another venue. “Patent protection is territorial,” says Susie S. Cheng, with Leason Ellis in White Plains, who focuses on global intellectual property and frequently helps clients navigate patent issues in Asia. “Not only would you want to get [IP] protections where a product is being sold, but it should also be obtained in a country where the invention may be manufactured.”

Where to start? Shishima recommends searching the web and databases like Google Patents or USPTO. “The search results,” she says, “could reveal that your idea is not new at all, or very similar to something that someone else came up with,” saving you the trouble and expense of filing for your invention in its current form.

If your search doesn’t disappoint, go ahead and file. Just be prepared to spend time and money. “Obtaining a patent can take several rounds of communications,” Shishima says, “so be patient—but also don’t give up if you think your invention meets the requirements.”

The Registration Process for Each Type of IP

Copyright protections automatically attach when original works of authorship are created. However, registering a copyright creates greater legal protections. It’s also required for pursuing an infringement lawsuit.

Literary works, music, art, film, computer programs, and photos can be copyrighted. To register, create the work, then visit copyright.gov to create an account. Select the registration type you want, complete the application, and pay the filing fee. Upload or mail copies of the work. Once the application is approved, the U.S. Copyright Office will issue a certificate.

Trademark registrations go through the USPTO. Before filing a trademark application, you need to do due diligence. Perform a trademark search to establish that there are no conflicts. Create an account on the USPTO.gov website.

File through the Trademark Center. Identify your intended use, submit an example of actual use, and pay the filing fees. An examiner will review the application. The marks then get published in the Official Gazette, giving third parties an opportunity to object. Once that window closes, the registration is issued. Owners must file maintenance documents to renew protections at the 5-6 and 10-year marks.

To obtain patent protection, inventors must go through the USPTO. Inventions must be novel, useful, and non-obvious to be considered. It’s wise to conduct a patent search before filing to ensure viability. Inventors can then file a provisional or non-provisional patent.

Applications must include a detailed description, claims, prior art, and drawings of the invention. A filing fee is required. An examiner will review the application and may request additional information. If approved, the inventor will be issued a patent after paying any required issue fees.

Consulting an IP Attorney for Guidance

Every idea takes a different path toward becoming intellectual property. Whether you’re developing a product, building a brand, or creating original content, knowing the distinctions among patents, trademarks, and copyrights ensures you choose the right safeguards. Consult with an intellectual property attorney and begin the process of exerting rights over your own creations.