Trademarks v patents
Which form of intellectual property is stronger, trademarks or patents?
... patents v registered trademarks
Some people think patents are the same as registered trademarks. They are not the same. Both are formally protected for country involved. However, there are several differences, which may be worth explaining.
Are patents better than registered trademarks?
Patents v registered trademarks - which is better?
The limitations of patents versus registered trademarks
If patents worked as a person in the street might expect, then there should be only one car, only one type of mobile phone, one type of camera. So what does a patent do? In essence a patent protects new technology from being copied. However, in specifying a patent the claims are focused such that the patent effectively protects the equivalent of a dot in the landscape of the technology area covered.
Are patents really strong enough?
This brings into question as to whether patenting is a sufficiently strong form of protection for intellectual property. Indeed, a key question is whether stronger protection for intellectual property is embodied in trademark registration compared with patents. Some of the issues that arose from patents include: -
- do patents stop someone from inventing a similar product?
- do patents protect technology adequately to stop my phone camera from being invented elsewhere?
- how can you prove breach of a patent?
- how can an inventor adequately protect an invention, if the invention gets published?
- do patents adequately protect concepts?
Patents can be used to prevent copying of an invention, but a patent does not
- prevent use of the published information to invent something else,
- it does not stop another inventor from inventing a similar product, or
- if a patent was totally exclusive, others should be blocked from arriving at similar inventions.
- It does not prevent adequately another person from using a new configuration to create a similar good by his own independent efforts.
Consider registered trademarks for intellectual property protection
While a patent is an intellectual property monopoly in the same sense as a registered trademark, or registered design, it has limitations that can be considerable.
Patents versus registered trademarks
Sometimes patents are not appropriate - where registered trademarks can be
Patents do not appear appropriate for protecting concepts, or themes.
The inventor obtains a monopoly that is limited in time (usually 10 or 20 years), and scope that appears to be such that other inventors can make other similar inventions from the published information that a patent embodies.
This makes patents less valuable as a form of protection for intellectual property. Traditionally new ideas are protected through patents, although certain matters are not patentable - for example recipes, or ideas that already exist or ideas that form part of the state of the art.
So protection of your technology may be more difficult to obtain than might appear at first.
So it may be very worthwhile looking at using trademark registration as a suitable additional tool for protection. Registered trademarks have been very successful in protecting matters that can be embodied into the following:
- concepts, such as cartoon characters.
- brand names, such as a name for a drink.
- titles, such as a book or film title.
- character film rights and merchandising.
- themes, such as a devised theme, like 007.
- themes or ideas such as restaurant chains.
- concepts, such as contained in beauty products.
Applying to register a trademark can carry significant rights, once registration has been obtained.
The registered trademark allows for several ways to exploit concepts, brand names, titles, film characters and themes.
In certain cases, it would now appear that the case for registering a trademark has been strengthened by the decision in the Da Vinci Code case.
To see more about registering trademarks for films, television programmes or cartoon characters, go to the film trademarks and character merchandising page.