Differences Between Copyright,
Trademarks, Patents, and Trade
Secrets?
Copyright, trademarks, patents, and trade secrets are all different types of
intellectual property (IP). It is sometimes confusing to understand what exactly
each type of IP protects. But understanding the differences between copyright,
trademarks, patents, and trade secrets can help you understand how to best
protect your works and enforce your rights. A brief description of these different
forms of IP including a brief discussion of their differences from copyright, is
provided below.
Copyright Defined
A copyright is a collection of individual rights that you automatically have once
you create an original work that is fixed in a tangible medium like a photograph, a
book, or an mp3 file. These rights include the right to reproduce the work, to
prepare derivative works, to distribute copies, to perform the work publicly, and to
display the work publicly.
As the copyright owner, you can transfer an individual right or multiple rights to
one or more people or collectively transfer them to one or more people. This can
be accomplished through licensing, assigning, and other forms of transfers.
Being a copyright owner also allows you to control whether and how your work is
made available to the public.
Copyright Protection
Copyright law automatically protects original works of authorship, such as books,
articles, songs, photographs, sculptures, choreography, sound recordings,
motion pictures, and other works. Copyright registration is not required but
registering your work with the U.S. Copyright Office provides many benefits.
Trademarks Defined
A trademark is a word, phrase, symbol, and/or design that identifies and
distinguishes the source of the goods of one party from those of others. A service
mark is a word, phrase, symbol, and/or design that identifies and distinguishes
the source of a service rather than goods. Examples include brand names,
slogans, and logos. (The term “trademark” is often used in a general sense to
refer to both trademarks and service marks.) Trademarks can be registered with
the U.S. Patent and Trademark Office (USPTO).
Trademarks vs. Copyright
Similar to copyright, a person does not need to register a trademark or service
mark to receive protection rights, but there are certain legal benefits to registering
a mark with the USPTO. While there is rarely an overlap between trademark and
copyright law, it can happen. For example, when a graphic illustration is used as
a logo the design may be protected both under copyright and trademark. But the
main difference between copyright and trademark is that copyright protects
original expressions in works whereas trademark protects the business
reputation and goodwill associated with the word, phrase, symbol, and/or design.
Patents Defined
A patent protects inventions. These inventions can include new and useful
processes, machines, manufactures, compositions of matter as well as
improvements to them. The primary goal of the patent law is to encourage
innovation and commercialization of technological advances. Patent law
incentivizes inventors to publicly disclose their inventions in exchange for certain
exclusive rights.
Inventors can apply for and be granted a patent from the U.S. Patent and
Trademark Office. Unlike the copyright registration process, the patent
application process is expensive, complex, and time consuming and generally
should not be attempted without the assistance of an experienced patent
attorney or agent.
Patents vs. Copyright
There is rarely any overlap between copyright and patent, but there are certain
kinds of works that can be both protected by copyright and patent. For example,
certain computer programs may be protected by both patents and copyrights. In
this respect, the patent system complements copyright protection by providing
protection for functional aspects of the software, which are not protected by
copyright.
Trade Secrets Defined
Trade secret protection protects secrets from unauthorized disclosure and use by
others. A trade secret is information that has an economic benefit due to its
secret nature, has value to others who cannot legitimately obtain it, and is subject
to reasonable efforts to maintain its secrecy. The protections afforded by trade
secret law are very different from others forms of IP.
Trade Secrets vs. Copyright
Works that are protected by copyright may also include trade secrets. This most
commonly occurs in computer programs and testing materials. The U.S.
Copyright Office has special procedures for registering computer programs that
contain trade secrets. In other instances where a copyrighted work contains a
trade secret the applicant can request special relief from the Copyright Office to
take steps to ensure that the trade secret is not disclosed in the registration
application.
The chart below details the main differences between copyright, trademarks,
patents, and trade secrets with regard to protection, requirements, terms, and
grants.
Copyright Patents Trademark Trade Secret
Original works of
Any word,
authorship, such as Inventions, such
phrase, symbol, A formula, practice,
books, articles, as processes,
and/or design that process, design,
songs, machines,
identifies and instrument, pattern,
What’s photographs, manufactures,
distinguishes the commercial method, or
Protected? sculptures, compositions of
source of the compilation of
choreography, matter as well as
goods of one information that is not
sound recordings, improvements to
party from those generally known.
motion pictures, these.
of others.
and other works.
Requirements A work must be An invention A mark must be A trade secret must
to be original, creative, must be new, distinctive (i.e., have an economic
Copyright Patents Trademark Trade Secret
benefit due to its secret
nature, have value to
that is, it must be
others who cannot
capable of
and fixed in a useful, and legitimately obtain the
Protected identifying the
tangible medium. nonobvious. information, and be
source of a
subject to reasonable
particular good)
efforts to maintain its
secrecy.
For as long as the
Term of Author’s life plus For as long as it
20 years. mark is used in
Protection 70 more years. remains secret.
commerce.
Right to use the
Right to control mark and to
the reproduction, Right to prevent prevent others
making of others from from using
Right to prevent others
derivative works, making, selling similar marks in a
Rights from misappropriating,
distribution, and using, or way that would
Granted using, and disclosing
public importing the cause a
the tra
performance and patented likelihood-of-
display of the invention. confusion about
copyrighted works. the origin of the
goods or services.