If you want to protect your rights to something that you or your organisation have created or commissioned, be it a new product or service, a creative endeavour or any other kind of intellectual property, then you may find the terminology confusing if you’re not used to it. Indeed, much of it is used interchangeably (not always correctly) and there is a certain overlap between the areas of legislation.
Let’s take some of the main terms. The ‘trademark’ is an idea that has been around in some form since the first craftsmen put personal marks on their piecework to ensure they were paid for it. Most governments began to introduce trademark legislation in the 19th Century, when industrialisation and an increasingly global marketplace created a need for a clear legal framework for the exchange of goods and services.
A trademark is an image or a name, word or phrase that distinguishes goods (or services, although you may sometimes see the term ‘service mark, in this context) produced or provided by a specific party from those of any other.
While it is advisable to formally register your trademark, it is not actually necessary. The right to use a trademark is established mainly by using it. So, if you are the owner of a well-known brand and a competitor gives their product a name which might be mistaken for yours, then you have a right to challenge them, regardless of whether your trademark is registered or not. However the benefit of a trade mark registration is that you do not have to gather evidence of your reputation in a brand. Trade mark infringement action is readily available to stop a competitor copying your brand and trading on your hardearned reputation in the marketplace.
Unlike a trademark, which serves to protect a brand and can be renewed indefinitely, a ‘patent’ registration protects an invention or function of a product, for a limited time – generally 20 years. Different countries have different definitions of what constitutes a patentable invention. In general, to be acceptable for a patent, the invention must be genuinely innovative, useful (although that, of course is a rather subjective standard), and not so obvious that nobody has bothered to patent it before. An inventor who has developed a revolutionary gadget needs to secure a patent before approaching potential investors or business partners. If they do not, then they will have no rights over their invention if another party who sees the design and already has the manufacturing capabilities decides to make it for themselves and keep the profits!
Trademarks and patents are two of the most popular means for protecting different forms of ‘intellectual property’, which is basically anything that comes about as the result of human creativity and ingenuity. It includes intangible goods such as music and other creative works, many of which are protected by another branch of intellectual property law – copyright, as well as designs, inventions and developments in many other fields, such as new chemical compounds or plant varieties.
The issue of intellectual property is particularly relevant in the internet age. The ability to share data and bypass rights has sparked an often heated debate about the ethics of intellectual property ownership which shows no sign of abating.