What is the Difference between Trade Marks and Patents?
Trade marks and patents are two forms of intellectual property (IP) that individuals and businesses often apply for to protect their brand and inventions. Trade marks are commonly used to protect business names, brands and logos while patents are registered to protect inventions or innovations.
Both forms of IP protection are fundamentally different – it is important to understand their differences, especially if you intend to exploit your IP (for example, through an IP licence agreement). This article sets out the differences between trade marks and patents, and what they can be used to protect.
What is a Patent?
A patent is a form of IP protection that grants you a monopoly to use your invention or creation commercially. If you have invented a device, substance, method or process that you believe has not been developed anywhere else and has the potential to return significant investment, you may wish to protect it by registering a patent.
For a patent to be registrable, it must be new, useful and inventive. You should not discuss your idea with others as this may prevent successful registration. There are two types of patents - a standard patent and an innovation patent. A standard patent protects your invention for 20 years while an innovation patent lasts for up to 8 years. A patent cannot simply be an intangible idea, but a process, device or method that you have produced and acted upon.
What is a Trade Mark?
A trade mark is a type of IP protection that can apply to a sign, logo, sound, smell, colour or word. A trade mark distinguishes your good or service from others in the marketplace, and gives your brand legal protection.
Unlike patents, trade marks protect a sign, logo, word, smell, sound, shape, colour or phrase. Trade marks do not require an inventive step, but they do need to be different from other trade marks. If your trade mark is similar to another registered trade mark, in a similar class, your trade mark cannot be registered. You can search current trade marks to see if yours is already taken (or whether a similar one is taken). Trade marks are an easier form of intellectual property to register than patents. A registered trade mark protects your sign for 10 years and you can renew it before it expires.
What are the Differences between Trade Marks and Patents?
The significant differences between trade marks and patents relate to the registration process, how long the process takes, and rights when your IP is unregistered. Also consider that a trade mark is a form of protection of your brand, while a patent offers protection over your invention of a particular product.
During the registration process for a trade mark, you must begin by understanding whether you have something that can be registered as a trade mark - whether it is a sign, word, phrase and whether any of these are already registered as trade marks. Next, you need to check the class of goods and services you intend to register your trade mark under. There are 45 classes and you need to check what applies to the particular trade mark you wish to register. You need to ensure that your trade mark is distinctive enough to give you the best chance of success with your application and the least chance of it being in conflict with another registered trade mark.
In contrast, the application for a standard patent should begin with asking yourself a commercial question after you come up with your idea - will the possibility of return on investment for a patent outweigh the significant time, effort and resources required to apply for a patent? The reason for this is that the commercial investment for a patent largely outweighs that of a trade mark. Even before you consider registration, you need to ensure you keep your invention as private as possible to ensure the best possible chance of a successful patent. Like a trade mark, you'll need to do your search to ensure that your idea doesn't already exist, but trade marks are much more common and sought after and require more searching.
A trade mark can take three or four months to be examined, and a patent can take from twelve months to years, due to its complexity. Another difference to note is that because of the expense and time involved with obtaining a patent, a provisional patent may be granted.
The decision to register a patent is a balancing act. If the invention is kept secret, it leaves open the risk of a competitor discovering the invention and replicating it. However, the invention, by choosing to register it, legally prevents the competitor from patenting the invention since the public has formed knowledge of it. Unregistered trade marks are limited, because if you choose to keep your trade mark unregistered, and someone else does use it, you need to trace back your right to ownership. Your rights are retrospectively recognised (if you are successful), which may turn out to be the more expensive form of protection, particularly as you will need to provide a large amount of evidence to prove ownership of your trade mark.
| Trade Mark | Patent | |
| What it Protects |
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A standard patent protects an invention that is new and is able to be used in a particular industry. It protects the step you have taken that differs your invention from existing technology. It doesn't protect mere knowledge or discovery. An innovation patent protects:- Inventions related to computers- Methods of business- Biological inventions- Micro-organismsAn innovation patent protects more short lived inventions that could be quickly superseded by newer ones. |
| Test for Application | It must be a sign that distinguishes your product or service from others | It must be an invention that is new, useful and innovative in the marketplace and it must be able to be used in a particular industry |
| Length of Protection | Ten years with the option to renew every ten years from the original filing application date | Twenty years for a standard patent.Eight years for an innovative patent. |
| Renewal Timeline and Regularity | A trade mark needs to be renewed every ten years, and there is no limit to the years you wish to keep your trade mark registered. | If you choose to renew a standard patent, this must be done annually from the 4th year to 20th year; if you choose to renew an innovation patent, it must be paid annually from the 2nd to the 7th year. |
Key Takeaways
Trade marks and patents are two forms of intellectual property that differ in duration of protection, registration process and rights they protect (both when registered and unregistered). Whether you register a trade mark or patent, avoid publicly disclosing it before application to ensure the best chances of registration. Registering intellectual property is a significant investment for your business and you need to be sure that others won't have information that might instigate an application before yours. You can read about other forms of intellectual property protection, such as the difference between copyright and trade mark.
Are you looking to register a trademark or apply for a patent? LegalVision's business lawyers are more than happy to assist you with your matter.
Article by Angela Metri. Angela Metri works at LegalVision and is also a consultant for Janders Dean, a global team of leaders who offer strategic and operational advisory services. She also sits on the Board for The Legal Forecast, a not for profit organisation creating awareness for innovation and disruption in the legal industry. She graduated from Macquarie University with a Law and Arts degree and is now continuing her studies with a Masters of Law, specialising in commercial and corporate law.