What a Trademark and a Patent Each Protect

Two different questions

People often use the words trademark and patent as if they meant the same thing. They answer different questions. A patent asks what you have invented. A trademark asks what you are called.

The United States Patent and Trademark Office grants patents and registers trademarks. Having one office for both is one reason the two get confused. The USPTO frames the difference simply: patents cover technical inventions, while trademarks cover brand identifiers that show the source of goods or services.

What a patent protects

A patent safeguards inventions and processes from other parties copying, making, using or selling them. In the words of the USPTO, it gives the inventor the right to exclude others from making, using, offering for sale or selling the invention.

There are three kinds. Utility patents are for a new or improved and useful process, machine, article of manufacture or composition of matter. Design patents are for a new, original and ornamental design for an article of manufacture. Plant patents are for a distinct and new variety of plant. Utility and plant patents have a term of up to 20 years from the date the first non-provisional application was filed. Design patents have a term of 15 years from the date of grant.

What a trademark protects

A trademark can be any word, phrase, symbol, design, or a combination of these. Its job is to identify the source of your goods or services. For example, a bakery's name is a trademark question. A new oven design is a patent question.

According to the USPTO, you become a trademark owner as soon as you start using your trademark with your goods or services, and you are not required to register it. Federal registration can provide nationwide legal protection for your brand in connection with particular goods or services.

Why the difference matters

A business may need neither, one or both. We think the first step is to decide which question you are asking, before you spend time or money on either. A name that buyers recognize and a method that is new are different assets, and confusing them leads to planning around the wrong one.

We also think the right person to advise on your own case is a licensed attorney. Software can explain the vocabulary. It should not decide what you are entitled to.

We have kept this note to what the public USPTO pages say. If you find a sentence here that those pages do not support, tell us and we will correct it.

General information, not legal advice.