Patent or trademark: which do you need?

Get a patent if you have made something new that works in a new way or looks new. Get a trademark if you need to protect the name, logo or slogan that tells customers who you are. A third right, copyright, covers creative works such as writing, images and music.

The three rights side by side

One product, three kinds of protection

Picture a company that invents a bottle lid with a new sealing mechanism and sells it under a brand name.

• The sealing mechanism could be the subject of a utility patent.
• The distinctive shape of the lid could be the subject of a design patent.
• The brand name and logo on the packaging could be registered as trademarks.
• The instruction booklet and product photos are covered by copyright.

Each right answers a different question. The patent asks whether the invention is new. The trademark asks whether customers could confuse the name with another one. They are decided separately, by different examiners, on different timetables.

Common mix-ups

A name cannot be patented, however clever it is. A patent protects the thing, and a trademark protects what you call it. In the other direction, a trademark does not stop a competitor from copying how your product works. Only a patent can do that, and only if the invention qualifies.

Founders often ask whether a patent will protect the brand. It will not. Founders also ask whether a trademark will protect the product design. It protects a design only when the design itself works as a brand identifier, which is a narrower case.

When you need more than one

A product company usually does. The invention and the brand are separate assets, and each can be sold, licensed or lost independently. If you can only afford one filing today, ask which loss would hurt more: a copycat making your product, or a competitor taking your name.

Which to file first

Timing differs. An invention generally has to be new and non-obvious, and showing it in public before you file can cause problems. The US has a limited one-year grace period for an inventor's own disclosures, and many other countries are stricter. So patent questions come first when you are about to launch or demo. A name should be checked before you print packaging or buy a domain, and our free trademark search is the quick first step.

Four questions that point to the right filing

• Is the valuable part how the product works or looks? That points to a patent.
• Is it the name customers ask for? That points to a trademark.
• Is it the content, such as a manual, a photo set or a written course? That points to copyright.
• Will you show the product publicly in the next few months? If so, speak to a registered patent attorney or agent first, because timing affects patent rights.

If two or more answers apply, plan for more than one right and sequence the filings by how soon each becomes public.

How we can help

For inventions, a registered patent attorney or agent prepares and files the application. See patent registration for the four services, or read how to patent an idea if you are at the beginning. For names, logos and slogans, see register a trademark. More topics are in our guides.

This is general information, not legal advice.