What Is the Difference Between a Trademark and a Patent?

Many of our clients often ask us what the difference is between a trademark and a patent. So, if you are confused between the two, rest assured you are not alone. However, failure to understand their differences could increase the potential for risk and loss. For instance, how do you know someone else will not copy your new invention you have created? How do you protect your brand?

By definition, a trademark is a ‘sign’ that one trader uses or has the intention of using in order to distinguish their products/services from the similar products/services of others in the marketplace. Generally, we might think of this as a brand name or logo for example. It is that ‘thing’ you apply to a product or service that lets consumers/others know from where it has come from. Often this is referred to as ‘a badge of origin’.
A patent on the other hand is the legal right given to a method, process, substance or device, that is new, inventive, useful (or innovative in some cases.) They are often called inventions and in order to protect them and obtain rights, must be new and useful – containing an inventive or innovative step.

What’s the Difference in Terms of Price and IP Protection?

The process of obtaining patent rights is typically more complicated than the process of obtaining trademark rights, with the fees in both official and professional fees differing. A patent will require correct specification and description drafting carried out by a qualified patent attorney. The fees to protect your invention can vary greatly depending on a variety of things. For example, the attorney you engage, the type of patent and the complexity of the invention. Patent attorneys can spend many, many hours drafting in order to ensure you obtain the best protection.

Trademark registrations do not usually see the same level of time or complexity, unless there is some sort of objection so the fees are generally lower to register a trademark than obtain an enforceable right to a patent. When it comes to explaining the difference in IP protection it needs to be understood that patents and trademarks are entirely different things, so, the difference in protection is that you are in fact protecting a different type of intellectual property. Once granted full protection, they both provide the owner with the rights to use or ‘exploit’ the property, licence the use to other parties and take the steps to enforce their rights if they are infringed upon.

Typically, both patents and trademark registration are obtained via a country-by-country process. The main difference being, that trademarks can be filed overseas at any time. Due to the ‘newness’ requirements of a patent, an applicant will have a finite period of time from first filing to enter other countries to obtain equal rights in other countries.

Does Patent Protection Last as Long as a Trademark? What’s the Difference in Terms of Duration?

In Australia, a trademark can be deemed viable indefinitely, as long as it is renewed every 10 years and does not come under of any sort of removal/cancellation procedure. Patents on the other hand have maximum life-spans. In Australia this life-span is a maximum eight years for an innovation patent, 20 years for a standard patent and 25 years for a pharmaceutical patent (subject to meeting ongoing maintenance and renewal requirements).

Is it Possible to Require a Patent and a Trademark at the Same Time?

There may be a need for an applicant to consider having a trademark and a patent at the same time. Most businesses would require at least one trademark for their brand name or logo, however a lot of them wouldn’t have a need for patenting.

A lot of businesses or individuals are not involved in new, inventive, useful products, processes or substances and therefore wouldn’t qualify for patent rights. If a party requires protection of an invention, it would usually be best that they explore that aspect before considering trademark registration due to the ‘newness’ requirement of patent filing.

By disclosing your invention too early and before filing your patent application, you might end up receiving invalid rights as it would not be deemed ‘new’ at the time of filing the patent applications. A trademark does not have a newness requirement, therefore it is less risky to delay its filing in a most cases. At Mark My Words we would generally suggest filing a trademark application as soon as a new brand or other distinctive sign is designed, as it is a seven and a half month process to register.

One reason to file both at the same time would be if a person needed to secure protection by a deadline or in the event they were seeking investment into their business or product/service. Having IP protection secured can help you secure financial investment, as your business would be viewed as more stable and viable if the investor knows that there will be limited competition due to monopoly of rights.

Who Can Assist in Registering a Patent?

If you are looking to obtain patent protection the team at Mark My Words strongly encourage any client with patent needs to consult with a registered patent attorney. You can find patent attorneys through the online resource at www.ttipattorney.gov.au or if you prefer, contact our office for a referral. We are only too happy to recommend an attorney we have worked with in the past.

Mark My Words – The Trademark Experts

Getting professional advice before embarking on any action relating to your business and trademarks can help avoid any unnecessary delays in getting a successful trademark, as well as avoid any expensive and drawn out disputes in the future.
The team at Mark My Words, have been helping businesses – both large and small – to successfully navigate their way around trademark law and registrations for years.

We appreciate that you’d prefer not to have worry about areas of intellectual property protection, so you can get on with the day to day running of your business. We provide independent, practical advice to issues such as what you should be registering, what your trademark should cover, what to do in the event of a dispute arising with another party.

Our friendly and experienced team will be able to guide you through the registration process and beyond, giving you the reassurance that your intellectual property is being protected.

Jacqui Pryor

Jacqui is a registered trade marks attorney with the Trans-Tasman IP Attorneys Board and is the founder and owner of Mark My Words Trademark Services Pty Ltd.

After being introduced to the world of trade marks in one of her first jobs after high school, Jacqui discovered she had a deep passion and interest for all things to do with protecting brands and intellectual property. She completed a Graduate Certificate in Trade Mark Law and Practices as well as a Diploma in Business Management and then set up her own business in 2011.

Her motivation for starting Mark My Words was to support SMEs which typically couldn’t afford such a service and while the company has grown in both size and reputation over the years, she has remained true to her founding principles of providing professional, friendly, reliable and affordable trade mark services to all.

Mark My Words now has a client list that spans businesses of all sizes across a range of industries. It provides advice and assistance on all types of complex trade mark registrations, infringements and opposition matters both in Australia as well as overseas.

Jacqui’s wealth of experience, broad range of professional qualifications and her ongoing participation in industry forums and networking platforms keeps her at the forefront of developments in the global trade mark arena. Her expertise in her field has also led to several nominations as a top individual trademark attorney by the World Trademark Review - the world’s leading trademark intelligence platform.

To keep up to date with the latest in the field of trade marks, follow Jacqui and MMW Trademark Services on Facebook.