How Are Trademarks Different from Patents?


Business owners often don't know the difference between trademarks and patents. That's why we sometimes get asked to patent a trademark or to trademark a patent. This cartoon will explain the difference between these two areas of intellectual property.





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TRANSCRIPT

NARRATOR: John invented an amazing gadget. It analyzes your brain impulses, uses a special algorithm to select the perfect music for you at that very moment, automatically purchases the music from an online store, downloads and then plays it at the volume that is calculated based on your current mood. He calls it, “Braindomizer”

NARRATOR: John wants to protect it.

JOHN: I would like to patent my trademark.

TRADEMARK FACTORY: You can patent inventions OR register trademarks. But you CANNOT patent trademarks, just as you can’t register inventions as trademarks.

JOHN: So what’s the difference?

TRADEMARK FACTORY: Patents and trademarks are two separate areas of intellectual property. Patents (or, Utility Patents, as they call them in the U.S.) protect the substance of novel and non-obvious inventions that you come up with. In your case, you should consider patenting the method of playing the perfect music based on brain impulses as well as the gadget that does it.

JOHN: What about trademarks?

TRADEMARK FACTORY: Trademarks protect names, logos, taglines and other identifiers that allow consumers to tell your products and services from identical or similar products and services of everyone else. In your case, the name “Braindomizer” is designed to allow consumers to tell your gadgets from your competitors’ gadgets that do essentially the same thing.

JOHN: But I don’t have any competitors yet. I just came up with this idea.

TRADEMARK FACTORY: If you don’t patent your invention, and it becomes a success, you WILL have competitors. But whether or not you have competitors is not the point. Trademarks are designed to protect something that CAN, in theory, allow consumers to distinguish identical or similar products and services offered by various sources. However, trademarks don’t protect the substance of your invention.

JOHN: What does it mean?

TRADEMARK FACTORY: If you register “Braindomizer” as a trademark, you will be able to stop others from using the word “Braindomizer” in association with gadgets that download and play music.

TRADEMARK FACTORY: But you won’t be able to stop others from making and selling gadgets that also download and play music based on brain impulses, if such other gadgets are sold under brands that are different from “Braindomizer”.

JOHN: I see

TRADEMARK FACTORY: These are two fundamentally different areas of IP that often go together but never overlap. Nothing that can be protected by a patent can be protected by a trademark, and nothing that can be protected by a trademark can be patented. That’s why it really does not make a lot of sense to further compare them.

JOHN: Let me make sure I understand this correctly. If I want to have a monopoly over the gadgets themselves, I should try to get a patent, and if I want to have a monopoly over the name BRAINDOMIZER, I should try to get a trademark.

TRADEMARK FACTORY: Yes.

JOHN: And if I want to have a monopoly over both the gadgets AND the name, then I should try to get both a patent and a trademark?

TRADEMARK FACTORY: Exactly!

JOHN: Now I understand how silly I must have sounded when I asked you if I could patent my trademark!

TRADEMARK FACTORY: Don’t worry about it. It’s a lot easier to understand the difference between various areas of intellectual property than to invent such an amazing gadget. You’ve done the most important part. Let us handle the rest.

JOHN: Thank you.


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Disclaimer: Please note that this cartoon is not and is not intended as legal advice. Your situation may be different from the facts assumed in this cartoon. Your watching this cartoon does not create a lawyer-client relationship between you and Trademark Factory International Inc., and you should not rely on this cartoon as the only source of information to make important decisions about your intellectual property.

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