Trademark vs Patent

An Explainer for Business Owners and Entrepreneurs

Business owners and entrepreneurs need to have a basic understanding of intellectual property law. Whether launching a startup, developing a product, or building a brand, you need to know how intellectual property rights can protect and affect your business. It is not uncommon for lay people to be unfamiliar with all the distinctions between trademarks and patents. This guide aims to demystify the differences between trademarks and patents, including how they are obtained, the protections they offer, and their distinct business values.

What Is Intellectual Property?

Intellectual property (IP) refers to creations of the mind, innovations, brand identities, artistic works, and more, that can be legally protected. IP protects these intangible assets from unauthorized use by granting exclusive rights to the creators or owners. The prominent forms of intellectual property protection include trademark protection, patent protection, and copyright protection.

Each type of IP protects different kinds of assets. Trademarks protect brand identifiers like logos and slogans, patents protect inventions, and copyrights protect creative works fixed in a tangible medium like books or motion pictures.

What Is a Trademark?

A trademark is a word, phrase, symbol, and/or design that serves to identify to consumers the source of the goods or services. When used for services rather than goods, the term service mark is sometimes applied, although "trademark" often refers to both.

Trademarks can include:

• Brand names (e.g., Nike, Apple)
• Logos (e.g., the swoosh, the Apple logo)
• Taglines (e.g., “Just Do It”)

The purpose of a trademark is to create a connection between a product or service and the business that offers it. Trademarks help build a brand's reputation, ensuring consumers know what to expect when purchasing goods or services under that mark.

A registered trademark provides exclusive rights to use the mark in connection with specific goods or services. This can prevent other businesses from using the same name or confusingly similar marks.

What Is a Patent?

A patent is a legal right granted to inventors that gives them exclusive rights to use, make, and sell their invention for a limited time, typically 20 years from the patent application filing date. A patent protects inventions, not brand names.

There are different types of patents:

1. Utility patents – Cover new and useful processes, machines, chemical compositions, and manufactured items. For example, a new type of engine or a new cancer drug might fall under this category.
2. Design patents – Protects the ornamental design of a functional item. Think of the unique shape of a Coca-Cola bottle.
3. Plant patents – Cover new varieties of asexually reproduced plants. For instance, a new variety of rose could be eligible for this kind of patent.

The public is most familiar with utility patents, which is the focus of the discussion in this article. To learn more about design patents and plant patents, click the links. Patents are issued by the United States Patent and Trademark Office (USPTO) through a rigorous patent application process.

Key Differences: Trademark vs Patent

The Business Value of IP

Intellectual property (IP) is a powerful asset that can significantly enhance a company’s competitive position and market value. Patents protect innovative products and processes by allowing patent owners to exclude competitors and generate revenue through licensing or exclusivity. Trademarks safeguard brand identity by securing exclusive rights to names, logos, and slogans, helping build consumer trust and recognition. Together, patents and trademarks provide the legal tools for protecting innovation and brand equity, often serving as key drivers of business growth, investment, and strategic partnerships.

Trademarks and Brand Equity

A strong trademark helps consumers recognize and trust your brand. This builds brand loyalty, increases market share, and provides legal leverage against counterfeiters or imitators. Trademark protection also adds to your business’s valuation and can be a key asset during mergers or acquisitions.

Patents and Innovation

A patented invention gives you a competitive edge by preventing other parties from copying your innovation. For companies that develop products or technologies, patents can create new revenue streams through licensing or sales. This is particularly critical in fields like machinery, chemical technologies, biotechnologies, medical devices, pharmaceutical drugs, and many others.

Legal Benefits and Exclusive Rights

Trademark protection allows you to enforce your trademark rights against infringers, e.g., through trademark litigation in state or federal court to recover monetary damages and injunctions to prevent unauthorized use of your brand. Registration with the USPTO adds benefits like nationwide protection and constructive notice to the public.

Patents allow the owner to prevent others from making, using, or selling the patented invention, even if they developed it independently. This is critical for many types of business, and particularly in high capital investments fields such as digital technology, biotech, and energy technology where patent exclusivity is essential.

Common Misconceptions

Can a Trademark and Patent Protect the Same Thing?

No. A trademark cannot protect a product or service's functionality. Conversely, a patent protects things like the structure of a new device, the function of a new device, chemical and material compositions (e.g., a novel drug, fertilizer, etc.), new methods of applying technologies (e.g., a new method of applying fertilizers to crops), new methods of making things (e.g., a new method of producing aluminum), and other useful innovations. A critical concept is that utility patents protect functional improvements in production, form, and use. However, it should be understood that a product might be protected by multiple forms of IP. For example, a smartphone’s function may be protected by a utility patent, its exterior design might be protected by a design patent, its branding by a trademark, and its software by copyright protection.

What About Copyright Protection?

Copyright protection covers original creative works such as books, music, visual arts, and motion pictures. A copyright owner gets rights to reproduce, distribute, and display the work for the author's life plus 70 years. Also, copyrights are registered through the Copyright Office, not the USPTO.

How to Register a Trademark or Patent

Both patents and trademarks can be registered with the United States Patent and Trademark Office, which is the executive federal agency tasked with overseeing patent and trademark registrations.

Registering a Trademark with the United States Patent and Trademark Office

The trademark registration process begins with conducting a comprehensive search of the USPTO database to confirm that your desired trademark is not already in use or registered by someone else. This search helps avoid conflicts and potential legal disputes down the road. Once you have cleared your mark, the next step is to file a trademark application with the USPTO. This application requires detailed information, including the owner’s identity, a clear representation of the mark, and a description of the goods or services with which the mark will be used. After submission, your application will be assigned to an examining attorney who will review it for compliance with federal trademark laws. If the examining attorney identifies any issues with the application, they will issue an office action to which the applicant must respond within the given timeframe.

If the application is approved by the examiner, it is published for opposition in the USPTO's Official Gazette. There is a 30-day opposition period during which third parties may oppose the registration of your trademark for various legitimate reasons (e.g., they were using the same or similar mark before you). If your application successfully overcomes any objections or oppositions, the mark will proceed to registration. To maintain the registration, you must file periodic renewals and declarations confirming ongoing use.

Filing a Patent Application

A patent application should be filed only if your invention meets the basic requirements for patentability: it must be novel, non-obvious, and useful. This typically involves conducting a prior art search to determine whether similar inventions already exist and evaluating whether your invention represents a meaningful advancement over what is already known. Once you have established that your invention is potentially patentable, the next step is to prepare a comprehensive patent application. This document must include a full written description of the invention, drawings, and one or more claims that define the scope of the legal protection being sought. Preparing the application requires precision and technical accuracy, as vague or overly narrow claims can significantly impact the value and enforceability of the resulting patent. After the application is filed with the USPTO, a patent examiner will review it and may issue rejections or objections in office actions. Responding to these rejections involves amending claims and/or presenting legal arguments to distinguish the claimed invention from the "prior art" (technology that existed before the application). If the application is allowed (approved by the examiner), a patent will be granted. Once granted, the patent owner has enforceable rights and intellectual property that can be licensed and commercialized.

Final Notes

Understanding the difference between trademarks and patents is important for any business looking to secure a competitive advantage. While trademarks focus on protecting your brand and its reputation in commerce, patents protect your innovation and ideas. Both are crucial forms of intellectual property protection that offer legal benefits and long-term value.

Additionally, business owners and entrepreneurs should not overlook the importance of registering their intellectual property. Protecting your IP safeguards your investment in branding and innovation, enhances your market position, and provides a basis for licensing the intellectual property.

Contact our office for a free consultation regarding your intellectual property and how it can protect and enhance your business.

© 2025 Sierra IP Law, PC. The information provided herein does not constitute legal advice, but merely conveys general information that may be beneficial to the public, and should not be viewed as a substitute for legal consultation in a particular case.