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 | |
|---|---|---|---|---|
| What’s Protected? | Original works of authorship, such as books, articles, songs, photographs, sculptures, choreography, sound recordings, motion pictures, and other works. | Inventions, such as processes, machines, manufactures, compositions of matter as well as improvements to these. | Any word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. | A formula, practice, process, design, instrument, pattern, commercial method, or compilation of information that is not generally known. |
| Requirements to be Protected | A work must be original, creative, and fixed in a tangible medium. | An invention must be new, useful, and nonobvious. | A mark must be distinctive (i.e., that is, it must be capable of identifying the source of a particular good) | A trade secret must have an economic benefit due to its secret nature, have value to others who cannot legitimately obtain the information, and be subject to reasonable efforts to maintain its secrecy. |
| Term of Protection | Author’s life plus 70 more years. | 20 years. | For as long as the mark is used in commerce. | For as long as it remains secret. |
| Rights Granted | Right to control the reproduction, making of derivative works, distribution, and public performance and display of the copyrighted works. | Right to prevent others from making, selling using, or importing the patented invention. | Right to use the mark and to prevent others from using similar marks in a way that would cause a likelihood-of-confusion about the origin of the goods or services. | Right to prevent others from misappropriating, using, and disclosing the trade secret. |
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