Trademark vs. Patent
The main difference between a trademark and a patent comes down to what is protected. A trademark protects a company’s branding through things like logos, slogans, and product names. A patent protects a creator’s right to exclusively use, sell, or distribute a novel invention, typically mechanical, chemical, or technological in nature.
There are many other differences between a trademark and a patent, including the application process, cost, and duration. We’ll walk you through them.
In this article, we'll cover:
What Are Patents and Trademarks?
Trademarks and patents are both distinct forms of intellectual property that protect different types of creations. Though there is often a misconception that trademarks and patents both work the same, they cannot be used interchangeably.
A trademark is a word, phrase, or design that is used in connection to goods or services in commerce. Trademarks do not have to be registered to start earning common law trademark rights. However, United States Patent and Trademark Office (USPTO) registration is the only assured way to have federal protections.
Unlike a trademark, a patent requires registration—the inventor has no inherent rights over the invention without a patent. In order to qualify for a patent, the invention must be new and non-obvious. Additionally, the invention must also have a tangible application and a purpose in some type of industry. Patents protect the inventor’s connection to their creation, including the right to use, sell, and distribute the invention.
While both patents and trademarks are intangible property that are unique in their application, industry, and/or jurisdiction, and both can be registered with the USPTO, the similarities end there.
To understand how fundamentally different patents and trademarks are, it helps to look at some examples.
Examples of Trademarks
Trademarks are extremely common. The average American sees thousands of advertisements a day, and most advertisements include one or more trademarks. These may include:
- Brand names, like Apple, Holiday Inn, and TGI Fridays
- Slogans, like McDonald’s I’m Lovin’ It, Dunkin Donuts’ America Runs on Dunkin, and Disney’s Happiest Place on Earth
- Logos, like the Nike swoosh, Shell gas station’s yellow sea shell, and the round face of the Gerber baby
Examples of Patents
Patents have been filed for most of modernity’s famous inventions, from the first iPhone patent applied for by Apple to the COVID-19 vaccination patented by Moderna. While not every invention gets a patent, chances are the biggest mechanical, chemical, and technological influences to modern life have active or expired patents attached to them. A few well-known patented inventions include:
- 3D Printer
- Hand-Sewing Needle
- Brain Injury Diagnostic System
- Messenger Bag
Patents continue to be a savvy way to protect intellectual property. Some patents are used to help spur profit: In the first quarter of 2023 alone, Ford Motor Co. filed over 350 patents for their mechanical technology. Similarly, Elon Musk’s many businesses have over 5,000 patents spread between them. Others distribute patents for humanitarian efforts, such as when co-inventors James Collip and Charles Best sold the original insulin patent for only $1 in order to share the life-saving medicine.
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Differences Between Trademarks and Patents
Trademarks and patents differ drastically in how and why they are used, as discussed above. Outside of this, the main differences come down to two things: the cost to apply for a trademark versus a patent and the duration of exclusivity they both have.
Considering that both trademarks and patents are filed with the USPTO, it makes sense that many people think the process is the same. However, it is important to go into your USPTO application fully understanding what you’re paying for—and for how much.
What does it cost to file a trademark or a patent?
The cost to register a trademark begins in the hundreds, while patent registration typically begins in the thousands. Let’s break this down.
A trademark’s cost to register is largely determined by the number of trademark classes the mark is registered in relation to, as well as which application is used. There are two trademark application types: TEAS Plus and TEAS Standard. TEAS Plus is $250 per class, and you can only use pre-written goods and services descriptions. TEAS Standard is $350 per class, but you can write your own descriptions.
Let’s take a small cosmetics company applying for a trademark for their business’ logo as an example.
- After deciding to register a design mark, the cosmetics company needs to choose which class(es) to register their mark under. Let’s say they choose Class 3: Cosmetics & Cleaning Products as well as Class 21: Housewares & Glass, so that both their makeup and makeup brushes are protected under the mark. Since this is a fairly straightforward selection, they are likely to choose the TEAS Plus application. Registering in two classes, this comes out to $500.
A patent’s cost to register with the USPTO includes the application filing fee, search and examination fee, issue fee, and, in the case of filing a utility patent, an additional non-refundable filing fee. In addition to the variety of fee types, pricing depends on the type of patent you’re applying for (utility vs. design vs. plant) and your entity size (regular vs. small vs. micro).
Let’s take a small entity applying for a utility patent with three claims, which are included in the original application for no additional charge, as an example.
- The application filing fee is $128. The utility patent search fee is $280, the patent examination fee is $320, and the issue and publication fee is $480. This totals $1,208 to apply for this small entity patent. Comparatively, this exact same patent for a “regular” entity size would be $3,020 for registration.
The USPTO patent fee schedule lists out all the variables in cost with filing a patent (and a trademark), but generally speaking, filing and registering a patent costs over a thousand dollars, even more if you file with the help of an attorney.
How long does a trademark or a patent last?
A trademark can technically last indefinitely. For federally registered marks, the trademark renewal process begins five years after the trademark is registered, starting with filing a Section 8 Declaration of Use and/or Excusable Nonuse. Registration is good for infinite years with proper filing.
A patent’s duration depends on the type of patent: utility and plant patents last for 20 years, while design patents expire after 15 years. Utility patent owners must pay periodic maintenance fees to keep the patent active for all 20 years. Once a patent expires, it is released into the public domain. This means that other inventors can use and/or improve upon the expired patent without permission from the original inventor.
Frequently Asked Questions
Is there more than one type of trademark?
Yes. There are several types of trademarks:
- Design marks, like logos
- Word marks, like business names
- Sound marks, like jingles
- Or a combination of the three, often used in marketing materials like commercials
Is there more than one type of patent?
Yes. There are three types of patents:
- Design patent: protects appearances
- Utility patent: protects processes and functions
- Plant patent: protects new plants, either discovered and asexually-reproduced or invented
Is it better to have a trademark or a patent?
Whether a trademark or a patent is better for you depends on what type of intellectual property you are aiming to protect. As mentioned above, trademarks protect portions of a company’s branding and consumer recognition whereas a patent protects an inventor’s right to their creation.
Can you have a trademark and a patent?
Yes. You can have both a trademark and a patent, though they won’t be for exactly the same thing. A trademark can protect a creation’s name, for example, and a patent can protect the actual creation itself.
Is the information on a trademark or patent application public?
Yes. The information on a patent or trademark application is public. This includes the actual trademark and/or patent information and the owner’s name/contact.
Why should I register my trademark?
Reasons why people register a trademark include increased infringement protections and enforcement options, exclusive ownership rights, added credibility and value for the company/brand, and expedited international protections.
What is a copyright?
A copyright is what protects “original works of authorship,” like novels, songs, and paintings. The work must be tangible, whether that is a physical or digital medium.
A copyright is technically automatic as soon as the work is created. However, you can also register your work with the U.S. Copyright Office to put your work’s ownership in public record. This could help if you ever need to go to court and prove your work’s ownership.
What is intellectual property?
Intellectual property refers to unique creations made by humans, like books, music, certain recipes, logos, marketing strategies, and more. IP is typically considered intangible—so, not the physical book itself, but the words within it, the story, and the characters.
What is a service mark?
Service marks are the same as trademarks, except they are for services in commerce, like spa treatments or car repair, rather than goods in commerce. Typically people just call a service mark a trademark, even though there is technically a difference.