What Is a Trademark? (How It's Different from a Patent)
By Indeed Editorial Team
Published May 29, 2022
The Indeed Editorial Team comprises a diverse and talented team of writers, researchers and subject matter experts equipped with Indeed's data and insights to deliver useful tips to help guide your career journey.
A trademark helps to identify a particular brand or item. People typically use trademarks to distinguish between different products and help inform customers' purchasing decisions, for example. Understanding exactly what a trademark is can help you in creating, developing, and establishing a brand for a specific business. In this article, we answer the question, "What is a trademark?", briefly outline what a patent is, compare trademarks and patents, and review how to obtain a trademark and patent.
What is a trademark?
A trademark is a kind of intellectual property that comprises a phrase, word, device, symbol, or design that uniquely identifies the source of a product or service. Trademarks differentiate one product from another. For instance, although several businesses may sell soda, only one may do so using a trademarked name. The trademark owner has legal control over how people can use the term or phrase within the context of that product line or service.
Trademark owners don't own the term or phrase entirely. For instance, if a business trademarks a certain kind of good, other businesses may use the same name for a different type of product as long as it doesn't cause customer confusion. For example, someone may open a clothes business and include the name of a successful chain restaurant into the business's name, as clients are unlikely to mistake the chain restaurant with the clothing store.
What is a patent?
A patent is an official document granted by the Canadian Intellectual Property Office (CIPO) which gives property rights to an inventor in exchange for the invention's public disclosure. While a patent doesn't provide individuals with the right to manufacture, use, or sell an invention, it does exclude others from manufacturing, using, or selling an identical product. An individual may receive a patent for a range of items, including chemical compositions, innovative software, pharmaceutical medications, and equipment.
Patents protect inventions, not ideas, so it's necessary for an inventor to have built a product before it can receive a patent. If you are responsible for registering patents within an organization, it's critical to register an innovation quickly to avoid someone else registering it before you.
Trademark vs. patent
Although both patents and trademarks provide some level of protection, they vary in terms of the intellectual property they cover and the manner in which they do this. While patents restrict others from manufacturing or selling a patented object, trademarks protect the words, symbols, logos, or other identifying features of your goods. The following are the primary distinctions between trademarks and patents:
Trademarks have three distinctive symbols designating different types of marks. The trademark sign (TM) is for identifying items or products, the service mark (SM) is for identifying services, and a registered trademark (R) identifies trademarks registered with the federal government. There are three types of patentable materials:
This patent typically covers the aesthetic aspect of a product, such as the appearance of a video game console. It's necessary for these designs to be an essential aspect of the product but may only alter its aesthetic. If the design alters the function or operation of the product, a company can file for a utility patent. For example, a design patent may be acceptable for a brand of shoes with a unique design but that operate similarly to other shoes.
A plant patent protects a new and distinctive plant. This is a rather uncommon sort of patent, as agricultural professionals or research scientists mostly use it. Plant patents typically extend 20 years from the date of filing and don't need ongoing maintenance.
A utility patent protects the creation of a new or improved product, process, or machine. Usually, the most frequent form of patent application received by the CIPO is a utility patent or patent for innovation. A utility patent's primary requirement is that the invention is novel and helpful.
While a trademark protects a sign, device, term, phrase, or emblem that indicates the source of a service or item, a patent protects an innovation or product. For example, a fast-food company requires a trademarked logo, but the developer of a new technological device needs a patent. A trademark protects a name, logo, or design that relates to the seller or maker of an item or service. Conversely, a patent confers property rights to an inventor over a product. This implies that another party cannot use or sell the patented product.
Both a trademark and a patent don't protect literary, musical, or creative works. These need copyright protection, which safeguards speech. For instance, although a description of an invention may get copyright, this doesn't prohibit others from replicating the machine, unless its creator has a patent. The CIPO also registers copyrights.
While patents can expire, trademarks don't expire after a certain number of years. Renewal of a trademark is possible as long as the owner uses the mark in commerce. The company only requires submitting required documentation and paying renewal costs at predetermined intervals. It's beneficial to know that not all trademarks require registration. The patent issued by the CIPO determines the validity of a patent. Typically, the CIPO validates patents for roughly twenty years, but after a patent expires, it becomes freely available to anybody. This approach enables innovators to earn money while the public benefits from advances.
Requirements for protection
To qualify for a trademark or patent, it's essential to meet certain requirements. To receive patent protection for a product, a company usually needs a new, useful, and non-obvious invention. For a trademark, the company may need a distinctive mark, such as a word, phrase, or design that can identify the manufacturer of a product.
How to obtain a patent and trademark
The process for obtaining a patent differs from that for a trademark. Here's how to obtain each:
There are two sorts of patent applications, provisional and non-provisional. A non-provisional application is time-consuming and requires a declaration. Provisional applications are less costly and don't require the submission of specific claims or declarations. A provisional application enables the inventor to use the phrase, patent-pending, in relation to the invention. You can follow these steps to obtain a patent:
Research the invention: Search to find a patent or publication and submit it to the CIPO. This can avoid disqualification.
Choose the type of protection: Consider the type of patent the company wants to file and choose from a design, utility, or plant patent. If the company wants to file a patent but preserves the opportunity to make adjustments to its invention, it can consider filing a provisional patent application.
Draft the patent application: Read the Manual of Patent Examining Procedure to help you file the patent application. Review the work and ensure the company completes the entirety of the application.
Wait for a formal response: Wait to hear from the patent office about the application. If the examiner doesn't approve the patent application, the company might consider seeking legal advice to create the response to the denial.
It's possible to register a trademark that's not yet in use in Canada. For example, a company may use a trademark that another business is using abroad. Use these steps to obtain a trademark:
Submit an application: A company can register a trademark by submitting an application to the trademark office with a non-refundable fee for each trademark it's submitting.
Pass the initial examination: Within four months, examiners from the trademarks office conduct a check of trademark records for possibly conflicting marks. Examiners notify applicants of any negative findings and may request applicants to submit new applications.
Gain approval: Once the trademarks office has completed the conflict search, initial assessment of registrability, and any necessary amendments to the application, the trademarks office may apply for advertising.
Pass the advertisement phase: The trademarks journal publishes the trademark information. Any interested party may review it, including submitting an opposition to the registration based on suspected similarity with a preexisting mark.
Receive notice of allowance: If they receive no objection within about two months after publication in the trademarks journal, the trademarks office publishes a notice of allowance of the application for registration.
Pay the registration fee: To advance to the final stage of registration, the applicant may pay a fee per trademark within six months of the date of the permission notification. The trademarks office may issue a certificate of registration for each legally registered trademark upon receipt of the registration fees.
Please note that none of the companies, institutions, or organizations mentioned in this article are affiliated with Indeed.
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