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Posted on April 26, 2021
Trademark vs Patent
What Is a Trademark?
A trademark is a word, name, phrase, or logo that identifies a product or service and helps distinguish it from that offered by the competition. Trademarks can be established through actual use in the marketplace, though they can also be registered with the U.S. Patent and Trademark Office. Trademark registration online aims to prevent consumer confusion by allowing a trademark owner to sue an infringer.
What Is a Patent?
A patent is a grant to an inventor that allows the inventor to monopolize the manufacture, use, sale, and importation of an invention. This right lasts a limited time and gives the patent owner the right to recover damages in a lawsuit against an infringer. There are multiple types of patents available to inventors depending on the nature of the invention.
What’s the Difference Between Trademarks and Patents?
A patent allows 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. Trademarks, on the other hand, are not concerned with how a new technology is used. Rather, they protect names of products and services, logos, and other devices—such as color, sound, and even smell—that are used to identify the source of goods or services and distinguish them from the competition.
For example, let’s say Juan invents a new type of hammer that makes it difficult to miss the nail. Not only can Juan prevent 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.
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 the particular model car in the marketplace, trademark law may kick in to protect the appearance of the fins.