Patents, Trade Marks, Registered Designs and Copyright

What's the difference?

Briefly:

	Patents are for inventions — functional products, or the machinery or chemical processes to make them
	Registered designs are for manufactured objects with aesthetic qualities
	Registered trade marks are the promotional signs or names under which goods are marketed
	Copyright exists in original works, either written (books, newspaper articles, letters, computer programs) or visual (pictures, films) or sound (tapes, broadcasts, CDs) or a combination (websites), but not just in unrecorded ideas

The main difference between the first three and the last is that you have to apply for and obtain patents, registered designs and trade marks — whereas copyright intrinsically exists in any original work once it becomes public.

Patents

In order to obtain a patent you must meet three criteria:

	it must be new
	it must be useful
	it must be inventive

New means that not only must no one have thought of it before you, but also it must not be public knowledge. This means you must apply for your patent before you try to sell your products, or even disclose details to others except under strict obligations of secrecy.

Useful merely means that your invention must have an industrial application — you can't get a patent for an object that has no function no matter how beautiful it may be — although in that case you may be able to register the design, or it might possibly be protected by copyright.

Inventive means that it must not be an obvious progression from another object or process.

Registered Designs

These are for objects with artistic merit, as opposed to being purely functional. "Objects" usually means three-dimensional objects (where the design lies in the shape of the object) but can include two-dimensional objects such as textiles (where the design may be the pattern or texture). Like patents, the design must be new to qualify for registration.

The distinction between a registered design and a work of art is that the design must be of something mass-produced, rather than a one-off object or picture.

Registered Trade Marks

These are the "signs" under which you sell your inventions or designs or anything else. They are often words, but can also be symbols or signs (e.g. logos) or, indeed, sounds or smells.

The main criterion for obtaining a registered trade mark is that it is distinctive — it must operate to distinguish your goods or services from those of others, and not be able to be confused with existing marks or common language.

Once registered, all of the three above give absolute monopoly rights, for a specified period only (except in the case of trade marks where there is no time limit). This means no one else can use or sell your invented or designed object even if they did not directly copy you but thought of it themselves. Thus you can prevent anyone marketing your product, or using your trade mark (or even a very similar one) to help sell their products. Furthermore, you will be entitled to claim either damages or the profits gained by the infringement.

Copyright

Copyright is different in that you do not have to apply to anyone to achieve it — it automatically attaches to any original work to which it applies, and lasts for a maximum of the life of the maker plus 70 years.

However, because of the lack of registration, making claims for breach of copyright is complicated by the fact that you have to prove not only that you produced the particular work first but that the infringer had knowledge of and copied, used or adapted your idea in some way, and that they did not independently think of it themselves.

Unregistered Designs and Trade Marks

Something like the principle of copyright also exists for designs and trade marks in that, even if you do not register them, you may still have rights to exclusive use and be able to prevent copying or unfair business competition.

This whole area of law is extremely complicated and will vary with individual circumstances.

If you believe your intellectual property rights may have been infringed and would like advice on making a claim, contact Nigel Smith.

Article first published October 2002
Last reviewed August 2006