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How Trademarks Differ from Patents and Copyrights

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Trademarks are often mentioned in the same breath as copyrights and patents. While they do sometimes apply to the same thing, they're more often defined by their differences. It's important to understand how trademark law differs from other laws protecting creative works (collectively called " intellectual property laws"); rules and benefits depend on the type of intellectual property at issue.

How does trademark differ from copyright?
Copyright protects original works of expression, such as novels, fine and graphic arts, music, photography, software, video, cinema, and choreography by preventing people from copying or commercially exploiting them without the copyright owner's permission. But the copyright laws specifically do not protect names, titles, or short phrases. That's where trademark law comes in. Trademark protects distinctive words, phrases, logos, symbols, slogans, and any other devices used to identify and distinguish products or services in the marketplace.

There are, however, areas where both trademark and copyright law may be used to protect different aspects of the same product. For example, copyright laws may protect the artistic aspects of a graphic or logo used by a business to identify its goods or services, while trademark may protect the graphic or logo from use by others in a confusing manner in the marketplace. Similarly, trademark laws are often used along with copyright laws to protect advertising copy. The trademark laws protect the product or service name and any slogans used in the advertising, while the copyright laws protect the additional creative written expression contained in the ad.

For more information about copyright law, see the Copyrights area of Nolo's encyclopedia.

What's the difference between patent and trademark?
Patents allow the creator of certain kinds of inventions that contain new ideas to keep others from making commercial use of those ideas without the creator's permission. For example, Tom invents a new type of hammer that makes it difficult to miss the nail. Not only can Tom keep others from making, selling, or using the precise type of hammer he invented, but he may also be able to apply his patent monopoly rights to prevent people from making commercial use of any similar type of hammer during the time the patent is in effect (20 years from the date the patent application is filed).

Generally, patent and trademark laws do not overlap. When it comes to a product design, however -- say, jewelry or a distinctively shaped musical instrument -- it may be possible to obtain a patent on a design aspect of the device while invoking trademark law to protect the design as a product identifier. For instance, an auto manufacturer might receive a design patent for the stylistic fins that are part of a car's rear fenders. Then, if the fins were intended to be -- and actually are -- used to distinguish that particular car in the marketplace, trademark law may kick in to protect the appearance of the fins.

For more information about patent law, see the Patents area of Nolo's encyclopedia.

Copyright © 2000 Nolo.com Inc.




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