The term “Trademark” and “Patent” often get used interchangeably by those who are not aware of the difference that lies between them. At first look, they do seem to be quite similar because their essential use is protection but once one looks through the peels, the difference between the two becomes quite evident even to the naked and untrained eye.
Key Take away
In this blog, an attempt has been made to draw the stark difference between a Patent and a Trademark. Beginning with simple definitions, their importance and different types, it finally builds up to lay down the difference between the two in layman’s language and concludes with which one is best for your business. Additionally, a number of Frequently Asked Questions have also been listed.
Difference Between a Patent and Trademark?
What is a Patent?
You can obtain a patent as a form of intellectual property right if you create a brand-new, ground-breaking invention. It is granted by the nation in which you submit your patent application in the form of a legal certificate (Indian Patent Office in India). Patents are only issued following an extensive investigation by the patent examiner or officer, which confirms that no one else has already invented or produced a product that is similar to yours. Owners of patents have the full, exclusive right to make any use of their inventions and to profit financially from them. Additionally, patent owners have the right to demand monetary damages and impose restrictions on how corporations and other entities might use their inventions.
Why are Patents important?
It all boils down to protection when it comes to patents. With a patent registration, you get 20 years to develop and use the concept before your rivals get the access to the open rights to use it. The following are the main factors that make patents so important:
- Having a strong market position could make your new idea stand out among rivals.
- You’ll be viewed as a thought leader, increasing your credibility and reputation
- A higher rate of return on your investment is possible because you can make money by commercializing the invention by taking royalty or licensing it.
- Generating money for your company by appealing to investors if you have a patent that enables you to expand your market share.
- Getting a patent pending or patent granted could aid you when creating new contracts and gives you more negotiating power.
Types of Patents
In order to protect various types of inventions, various forms of patent applications are available. Smart innovators can use the various patent application types to obtain the legal protection they require for their discoveries. Though the most sought after patents are:
1. Utility Patent
More than two-thirds of all issued patents are utility patents, which are issued worldwide. It is given for a brand-new, practical, and original idea. Any device, procedure, produced good, material composition, or invention that improves upon an earlier one can be included.
There are three different sorts of utility: general utility, which is based on functionality, specific utility, which focuses on how the invention carries out the purpose, and moral utility, which ensures that the product is neither poisonous nor encourages improper use.
- Process Patent: where only a part/ process of a project or invention is patented.
- Product Patent: where the entire invention is patented.
2. Plant Patent
A plant patent does exactly what it says on the tin: it safeguards novel varieties of plants grown from cuttings or other nonsexual methods. Genetically modified species typically are not covered by plant patents and focus more on conventional horticulture.
What is a Trademark?
A Trademark is primarily any term, symbol, phrase, sound or appearance that acts as the of a brand’s identifier. Brands are often recognized by their distinctive names, emblems, sound, color combination and in unconventional scenarios the smell and texture also. Trademarks or service marks, aid in separating the goods and services offered by various brands. They are a type of intellectual property protection that is given to a brand for its distinctive presentation, similar to a patent. Brands do not, however, necessarily need to register a trademark, despite the fact that doing so may assist them to get exclusive protection rights, unlike patents. You can gain legally from registering a trademark for your brand in a number of ways as well.
Types of Trademarks
Although there are many different types of trademarks, they all serve the same objective, which is to let consumers recognize products and services coming from a particular manufacturer or service provider.
The trademark in general are distinguished on either the basis of protection or on the basis of types.
On basis of protection:
1. Fanciful: A mark which doesn’t have a dictionary meaning and is only created for the purpose of the brand. The well-known examples for such a mark can be Adidas, Kodak, Xerox, etc. They have the highest level of protection.
2. Arbitrary: These kinds of marks have a lower protection than fanciful marks as they have a dictionary meaning but it is not to the kind of goods or services they are being used for. For example, the mark “Apple” though refers to a fruit is used for phones.
3. Suggestive: These marks lie in the lower level of pedestal of protection as they describe the goods or services but the consumer has to use their imagination to understand the connection. The examples for such marks can be Airbus for Ariel vehicles manufacturing.
4. Descriptive: Descriptive marks have the least amount of protection and they have to justify as to whether they have acquired distinctiveness or not. Such marks directly describe the goods or services being provided under the mark.
On basis of its type:
1. Word Mark: A word mark is a simply a word or a lexical combination of words in the text form being applied for registration.
2. Device Mark: A device mark is an artistic representation of the mark in a stylized font and a particular color combination along with an artwork in some cases.
3. Label Mark: A label mark is usually the packaging of the product and the rights over such a mark is for the mark as a whole and no separate rights are given to any descriptive part of the mark.
4. Shape Mark: Shape Mark is only used to safeguard a product’s shape so that consumers can relate to it and choose to purchase it from a particular producer. Once a product is acknowledged to have a distinctive shape, its shape can be registered. The Coca-Cola or Fanta bottles, which have a particular shape associated with the brand, are examples of shapes.
5. Sound Mark: A sound mark is a noise that can be connected to a good or service coming from a specific vendor. People must be able to quickly and easily recognize the service, product, or show that the sound stands for in order for it to be registered as a sound mark. Examples for this can be the Nokia & NBC intro music.
6. Certification Mark: A certification mark is a symbol used by the organization to indicate a product’s origin, material, quality, or other specified information. The fundamental function of a certification mark is to highlight the product standard and provide buyers with assurances about the goods.
There are various unconventional marks that are up and coming as brand identifiers such as colour marks, texture marks, smell marks, etc which in international domain and as well as in few Indian scenarios been recognized for their rights.
Difference Between Trademarks and Patents
The six characteristics listed below illustrate the distinctions between patents and trademarks:
The governing laws that provide for the protection of patents and trademarks
The intellectual property laws of the countries where patents and trademarks are registered and filed, respectively, safeguard both of these property rights. In India, the Trademarks Act of 1999 protects trademarks, whereas the Patent Act of 1970 protects patents.
The Degree of protection given to patents and trademarks
A trademark safeguards a company’s distinctive name/mark that sets it apart from rival businesses in the public eye. Brands have the right to register a variety of identifying characteristics for their products, including but not limited to names, logos, slogans, colors, and shapes. On the other hand, an invention that is novel and unique and has an utility is protected by a patent.
The truth about patent and trademark validity
A 20-year validity period is included with patent which has to be renewed every year for the said period of 20 years without which the right over the patent ceases. On the other hand, while trademarks typically only have a 10-year lifespan, they can be renewed repeatedly before their expiration date to make them perpetual.
Obtaining a patent and a trademark takes time
A patent is normally awarded in India within the span of two to four years ideally which can increase if they are objections or oppositions. Several forms have to be filled out, the patent application is published patent journals and then the examination is conducted for which the examination report is issue and addressed by the Applicant.
Obtaining a trademark is also a lengthy process as the mark undergoes the checks as per the act and posts which if only the examiner is satisfied the mark is published. Subsequent to which the mark is open to opposition by third party for a period of 4 months. If a mark is opposed, the process can extend for 5-10 years.
In both the Patent and Trademark, there is provision for expedited examination which fastens the process.
Having to submit a provisional application
The sort of application is another area where patents and trademarks diverge. Within a year of submitting a provisional application, patent applicants are allowed to finish writing their patent specifications.
Application of patent and trademark rights
As per the Indian laws, the prior user is superior to the prior registrant and therefore though you have rights over your mark as soon as you start using it, the registration provides an extra layer of protection under the trademark act. When it comes to patents, the rights are granted from the date of application for a period of 20 years. The Office of Patent keeps the application a secret for 18 months post which anyone can apply for documents and inspection with a specified fee. Also a patent cannot be published pre application due to the idea of patent being novel and non-obvious, except certain situations.
What Suits Your Business- Patent or Trademark?
As established above, for novel and non-obvious inventions a patent is awarded, but in contrast, a trademark is awarded for a mark which is distinctive enough to distinguish one product from another in the market. Therefore, when deciding between the two the absolute question is- is whether there is an invention or is it a brand identifier?
Frequently Asked Questions
1. Is Google a Trademark or Patent?
“Google” is a brand name. Hence, it is trademark. At the same time, Google has numerous patents and patent applications related to its search inventions, and more.
2. Do Trademarks and Patents offer the same level of protection?
As discussed earlier, trademarks and patents are applied to different kinds of intellectual property. Therefore, while their essential duty remains the same, i.e. protecting intellectual property, their functions are quite different. Also, a registered trademark is valid for a 10-year period only, from the date of application, and can be renewed. Whereas, patent protection is valid for 20 years which is to be renewed every year after the first two years by paying the specific fees without which the patent ceases..
3. What is the cost of obtaining a trademark or patent?
The government fee for obtaining a trademark is ₹4500 for individuals/startups/Small Enterprises and ₹9000 for a Large Entity per mark per class. For a patent, it is ₹1,600 for an individual, small entities, startups or educational institute and ₹8000 for a large entity.
4. Are trademarks and patents recognized internationally?
Patents and Trademarks are territorial rights. In general, they are exclusive rights that are only applicable in the country or region in which they have been filed and granted. To obtain protection internationally, it is required that you must file an application in every country. But there are treaties and conventions that give the applicant to apply for registration in multiple countries at the same time. For trademark there is WIPO’s Madrid System whereas for Patent Application can be moved under Patent Corporation Treaty also known as PCT.
5. What is the role of a trademark or patent attorney in the application process?
A trademark lawyer offers advice and legal support to help a trademark proprietor or a potential applicant’s in determining whether their mark does not conflict with the rights of any other third party person. Not only that the Trademark attorney can help in representing the application during the objection as well as the opposition stage.
Patent attorneys assists in the patent application which consists of search, drafting of provisional and complete specifications of the invention as these are the most crucial element for registration.