Patent vs Trademark: The Difference

Patents and trademarks are IPRs that are brand differentiators. Learn their differences here

When they’re inventing something, inventors need to think about the differences between patents and trademarks and other types of Intellectual Property Rights to check which best apply to their invention. But, have you ever stopped to think about how things have changed in the last decade? In just one decade, we have witnessed innumerable new inventions, while several new brands have also emerged. Take the wrist watch for instance; it is no longer a device that just tells the time. It can measure your heart-beats, count the steps you take and track your sleep. The smart watch, as it is called, also enables you to receive phone calls and text messages. Then there are these speaker-like devices that respond to voice commands – they can tell you the news, play songs and even switch other devices on and off. This phenomenon goes to say that the process of invention is unending. Inventors are busy creating new and exciting things or improving things in ways one would never have imagined before. Yes, the world we live in thrives on innovation and competition. As such, companies need to stand out against their competition and create products that are exclusive to them. They also need to brand their products so that they can create a loyal customer base. Technical terms like patents and trademarks are used to describe brands. But what are they. Let’s understand them and find out the differences between patents and trademarks.

Patents vs trademarks – the definitions

Definition of a patent

A patent is a type of an intellectual property right you get for inventing something new, innovative and novel. It is awarded in the form of a legal certificate by the country in which you apply for a patent. For instance, patents are awarded by the Patent Office in India. Patents are granted only after detailed research by the patent examiner or officer, ensuring that no other individual has invented or created a product similar to yours. Patent holders own the complete, exclusive rights to use their inventions in any way they deem fit and also gain monetary benefits from the same. Furthermore, patent holders can prohibit businesses and entities from profiting from their invention and charge monetary damages. While there are three different types of patents, i.e., design, utility and plant patents, you can only file for design patents in India currently. If you wish to file for a plant or utility patent, you can do so internationally in several European and South American countries, as well as Australia, China, UAE, etc.

Definition of a trademark

A trademark is primarily any word, symbol, phrase or design, which serves as a source of identity for a brand. People typically recognise brands by their unique names and logos. Also referred to as service marks, trademarks help distinguish the products provided by one brand from another. Like a patent, a trademark is also an intellectual property right assigned to a brand for its unique presentation. However, unlike patents, brands do not mandatorily need to register a trademark, although doing so can help them receive exclusive protection rights. There are also several legal benefits you can get from registering a trademark for your brand.

Patent and trademark differences

There are six factors highlighting the differences between patents and trademarks. They are as under:

1. The Governing Acts under which patents and trademarks are protectedBoth patents and trademarks are protected under the intellectual property laws of the land in which they are filed and registered, respectively. In India, patents are protected under the Patent Act of 1970, whereas trademarks are protected under the Trademarks Act of 1999.
2. Type of protection afforded to trademarks and patentsA trademark protects a brand’s unique name that distinguishes it from other brands on the public forum. Brands can trademark various elements distinguishing their brands including, but not limited to names, logos, slogans, colours, shape etc. The brand logos and colours used by the fast-food restaurant brand McDonald’s is a very popular example of a trademarked brand logo. Conversely, a patent protects inventions which are novel and original and typically have industrial utility. Inventors may also improve an existing utility or design and file a patent for the same.
3. The validity of patents and trademarksPatents come with a validity period of 20 years. On the other hand, trademarks are typically valid for a period of 10 years but can be made perpetual by renewing them each time, before the expiration date. You can also renew your patents upon expiration, for an additional block of 20 years each time.
4. Time taken to get a patents and a trademarkIt typically takes anywhere between 2-3 years for a patent to be granted in India. The process involves the filling of several forms, the publication of the patent application in patent journals and thorough research for other similar products. Acquiring a trademark also takes an extended period, usually 12-18 months to get a trademark registered.
5. The requirement for a provisional applicationAnother point of difference between patent and trademark involves the type of application. Patent applicants can file a provisional application and complete their patent specifications within 12 months from the date of filing the provisional application. In the case of trademarks, while there is no need to submit a provisional application. However, brand owners are required to run a trademark search.
6. Applicability of trademark and patent rightsOnce your trademark is registered, you as a brand owner can claim complete rights over the brand logo, design or colour scheme applicable to your trademark. In the case of a patent, the patent law comes into force from the day the patent application is filed. As an owner of a patent, you have the right to prohibit any person or organisation from claiming any rights over your patent, from the time you apply for it – whether it is provisional or complete.

Final note: Now that you know the differences between patents and trademarks, you can decide which IPR can prove more profitable for your invention. Note that there will be instances when patents and trademarks can intersect. For instance, a new company offering a new product may need to file a trademark for its brand logo and a patent for its invention. Getting both patents and trademarks can prove beneficial and can also help you get the exclusive rights over your invention.