Copyright, trademarks and patents: how they differ and what a business should protect first
When it comes to intellectual property, many business owners use the words copyright, trademark and patent interchangeably, even though the three protect different things, are acquired in different ways and last for different periods. Understanding the differences helps you protect the right things and spend your budget wisely.
Comparison at a glance
| Type | What it protects | How the rights are obtained | Term of protection |
|---|---|---|---|
| Copyright | Creative works, such as writing, software, images, graphic design and music | Arises automatically when the work is created, with no registration needed | The author's lifetime plus 50 years (general case) |
| Trademark | Names, logos or symbols used to distinguish goods or services | Registration with the Department of Intellectual Property (DIP) | 10 years from the filing date, renewable for 10 years at a time |
| Invention patent | Inventions or processes that are new, involve an inventive step and are capable of industrial application | Registration after examination | 20 years from the filing date |
| Petty patent | Inventions that are new and capable of industrial application but need not involve an inventive step | Registration | 6 years, renewable twice for 2 years each time |
| Design patent | The shape or pattern of a product | Registration | 10 years from the filing date |
Copyright: the rights are automatic, but keep evidence
Copyright arises the moment a work is created, so no registration is needed for protection. Even so, recording copyright information with the DIP and keeping evidence of creation, such as dated original files, helps prove ownership if a dispute arises.
Where businesses often slip up is the ownership of work commissioned from others or created by employees. The law applies different rules depending on the type of engagement, so the safe course is to set out copyright ownership in a written contract from the start.
Trademarks: protecting your brand identity
A trademark protects what customers use to recognise your brand. Protection is tied to the classes of goods or services registered and applies only in the countries where the mark is registered, so a brand that plans to expand abroad should also plan registration in its target countries.
Patents: do not disclose before you file
An invention must be new. Disclosing it to the public before filing, for example by putting it on sale, showing it at an exhibition or posting the details online, may cost it its novelty and make it impossible to obtain a patent. File before you launch, and use a non-disclosure agreement whenever you must reveal it to business partners.
Do not forget trade secrets
Some information, such as formulas, production processes or customer lists, may be better protected as trade secrets, for as long as the information stays secret, has commercial value and the business takes appropriate steps to keep it confidential, such as restricting access and signing non-disclosure agreements.
What should a business protect first?
- Register trademarks for your main brands in the classes you actually use.
- Set out ownership of work in your contracts with employees and outside contractors.
- Assess new inventions or designs before launch, and file applications before disclosing them.
- Put trade secret protection in place and use non-disclosure agreements.
Frequently asked questions
How is software that the company develops itself protected?
Computer programs are protected as copyright works, product names are protected by trademarks, and in some cases other forms of protection may also be considered, depending on the nature of the invention.
If we hire a designer to create our logo, does the company own it?
It depends on what the parties agree. The contract should state clearly that copyright in the design belongs to the company, before the logo is filed for trademark registration.
Can a business idea be protected?
An idea that has not yet been expressed as a clear work or invention is generally not protected. The practical approach is to keep it confidential and use a non-disclosure agreement when it has to be shared.
Let us help you plan your intellectual property
Kerwin & Vance provides strategic advice on managing intellectual property, covering copyright, trademarks and patents. Find out more about our Law & Intellectual Property services, or book a consultation with us.
This article provides general information only and is not legal advice on any specific case. Consult a specialist before taking action.