A summary of the four types of intellectual property
Intellectual property refers to the creations of the mind, such as inventions, logos, literary works, and secret recipes. There are four main types of IP in the U.S.: patents, trademarks, copyrights, and trade secrets. Although navigating between them can be confusing, each one is a legal protection for something different. Below is a table that summarizes the main differences. Keep in mind that for your specific situation, you should speak to an attorney to determine what protections or remedies apply to you—contact us to discuss your options.
| Patent | Trademark | Copyright | Trade Secret | |
|---|---|---|---|---|
| Covers | Utility patents cover any new, useful, and non-obvious process, machine, manufacture, or composition of matter. Design patents cover any new, original, and ornamental design for an article of manufacture. There are also plant patents, but those are very uncommon. |
A mark (such as a word, phrase, logo, sound, or color) that is used in interstate or foreign commerce to identify the source of goods or services. | An original work of authorship fixed in any tangible medium of expression. | Financial, business, scientific, technical, economic, or engineering information where (1) the owner has taken reasonable measures to keep the information secret and (2) the information derives independent economic value from being secret. |
| Famous examples | 3,789,409: the utility patent for GPS D672,769: Apple's design patent for the iPhone |
2,901,090: trademark for the color brown issued to UPS for “Transportation and delivery of personal property by air and motor vehicle” 743,572: MCDONALD’S for “Drive-In Restaurant Services” |
TX0004465397: Harry Potter and the Sorcerer’s Stone | Coca-Cola’s secret formula for Coke syrup |
| Exclusive right | Preventing others from making, using, offering to sell, or selling the patented invention within the U.S., or from importing it into the U.S. | Preventing others from using in commerce any similar mark which is likely to cause confusion or deceive. | Exclusive right to: - reproduce copies or phonorecords (a fancy word for sound recordings); - prepare derivative works - distribute copies or phonorecords to the public; - perform; and - publicly display |
Right to prevent misappropriation of the trade secret information. |
| Length of exclusive right | For utility and plant patents: 20 years from the filing date of the patent application. For design patents: 15 years from the issue date. |
Indefinite, as long as the mark is used in interstate commerce. | If created by an individual: life of the author + 70 years (for works created after 1/1/1978). Work-for-hire: 95 years from first publication, or 120 years from first creation, whichever expires first. |
Indefinite, as long as the trade secret remains secret. |
| How to obtain | File an application with the U.S. Patent and Trademark Office. However, given the complexity of obtaining a patent, it's best to hire a registered patent attorney to prepare and prosecute the application for you. | The user of the mark automatically has a trademark, but there are benefits to registering the mark with the U.S. Patent and Trademark Office. | The author automatically obtains a copyright at the time the work is created, but there are benefits to registering the copyright with the U.S. Copyright Office. | Nothing needed beyond the requirements above. |
| Cost to obtain | The basic filing fee for a utility patent is a few hundred dollars, but the most expensive part of the application is having a patent attorney draft and prosecute the application. Depending on the complexity of the invention, the total cost can reach 5 digits. | The USPTO filing fee is $250-$350 per class of goods/services. Attorneys will charge an additional fee to prepare and file the application for you, and to do a search for similar marks beforehand. | The USCO filing fee for a single work with a single author that is not a work-for-hire is $45. Attorneys will charge an additional fee to prepare and file the application for you. | None, except the expenses needed to keep the information secret. |
| Remedies for infringement | The patent-holder’s lost profits, or a reasonable royalty. The court may increase the amount awarded up to 3x. In exceptional cases, attorneys’ fees may be awarded. For design patents, recovery of the infringer’s profits is also available. An injunction against future infringement is also available. |
The infringer’s profits, any damages sustained by the mark-holder, and court costs. In exceptional cases, attorneys’ fees may be awarded. Potentially increased damages for counterfeit marks. Other remedies can include destroying labels, advertising, etc. containing the infringing mark and an injunction against future infringement. |
Attorneys’ fees and costs, plus either (1) actual damages and the infringer’s profits that are attributable to the infringement or (2) statutory damages. Statutory damages range from $750-$30,000 per work infringed. The maximum jumps to $150,000 for willful infringement, and the minimum drops to $200 for innocent infringement. Other remedies can include impoundment of infringing items and an injunction against future infringement. |
Either (1) damages for actual loss and unjust enrichment caused by the misappropriation or (2) a reasonable royalty. Potential increase of damages by up to 2x, and an award of attorneys’ fees, for willful misappropriation. The plaintiff can also request seizure of the property containing the trade secret during pendency of the suit. |
| Statute of limitations | No recovery for any infringement committed more than 6 years prior to the filing of the complaint. | Federal trademark law doesn’t specify a statute of limitations, so courts look to the statute of limitations for similar laws of the state in which they sit. | A lawsuit must commence within 3 years from when the claim accrued. (Usually, a copyright claim "accrues" when the plaintiff discovered, or reasonably should have discovered, the infringement.) |
A lawsuit must commence within 3 years after the date on which the misappropriation is discovered, or should have been discovered through reasonable diligence. |
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