How Patents Differ From Copyrights and Trademarks FAQ

If you're seeking a design patent, you should be aware of copyright and trademark laws, too.

How do patents differ from copyrights?

With the exception of innovative designs, patents are closely associated with things and processes that are useful in the real world. Almost at the opposite end of the spectrum, copyrights protect expressive arts such as novels, fine and graphic arts, music, phonorecords, photography, software, video, cinema and choreography. While it is possible to get a patent on technologies used in the arts, copyrights are what keeps one artist from stealing another artist's creative work.

An exception to the general rule is that design patents, which protect the ornamental design of products, can overlap with copyrights. These two legal protections overlap when functional objects -- for example, guitars, table tiles, clay pots, or running shoes -- embody a distinctive or pleasing visual appearance.

What's the difference between patents and trademarks?

Patents allow those who create inventions to keep others from making commercial use of the inventions without the creator's permission. Trademarks, on the other hand, are not concerned with how a new technology is used. Rather, they protect names of products and services, logos and other devices -- such as color, sound and smell -- that are used to identify the source of goods or services and distinguish them from their competition.

Generally, patent and trademark laws do not overlap. When it comes to a product design, however -- say, the design of a piece of jewelry or a distinctively shaped musical instrument -- it may be possible to obtain a design patent on the ornamental aspect of the device (as distinguished from a utility patent for the invention, itself), while invoking trademark law to protect the design as a product identifier. For example, a surfboard manufacturer might receive a design patent for the appearance of its surfboard. Then, if the design is intended to be -- and actually is -- used to distinguish the particular type of surfboard in the marketplace, trademark law may kick in to protect the appearance of the board.

For more information about trademarks, see the Trademarks section of Nolo's website.