Trademark, Copyright or Patent – Which is right for your business?

There is often a great deal of confusion over whether a trademark, copyright or patent is the appropriate intellectual property solution. Whereas copyrights and patents protect original creative works, trademarks protect business branding and good will in the marketplace.


Copyrights are granted under federal law for original creative works in just about any medium imaginable – writings like books, music, even statues.


Patents are protections under federal law for original functional creative works, i.e, inventions.
Patents protect things like new kinds of machines, chemical and other processes, and new ways of doing things in non-obvious ways.

Both patent and copyright therefore are federal protections for new, original, creative works and protect the author’s or inventor’s rights to use, distribute and profit from the creative work.


Trademarks, however, are a different animal. As the U.S. Supreme Court has noted in the Trademark Cases, “neither originality, invention, discovery, science, nor art is in any way essential” to trademark rights. Trademarks do not have to be new, creative, or original in any way, other than not having someone else already using it. Trademarks can be as boring and unoriginal as “ACME Tool Company.”

Instead, trademarks protect the words or symbols used by business and individuals in distinguishing their goods and services sold in commerce from the goods and services sold by others. Trademarks have been considered as a device to protect the goodwill or reputation of businesses who have spent time and money in building their brand recognition with consumers in the marketplace. Trademark is not a property right in the word – one does not “own” the words or symbols constituting the mark to the exclusion of others. Trademark only protects the registered owner from others using the mark on similar goods or services, impinging on the goodwill and reputation of the registered owner and causing confusion in the marketplace. This distinction is reflected in the definition of trademark in federal law:

  • “The term “trademark” includes any word, name, symbol, or device, or any combination thereof… used by a person… to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.
    15 U.S.C. § 1127.

*Trademarks are a valuable component of every business marketing plan. If you have any doubts about whether you need a trademark, copyright, or patent, the attorneys at Drumm Law can be of assistance.*