In Short
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Patents protect inventions, such as new products or processes, and give you exclusive rights to exploit them.
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Trade marks protect your brand, covering names, logos, slogans, and other branding elements.
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Both require registration with IP Australia for full legal protection, but offer different benefits and durations.
Tips for Businesses
Registering both trade marks and patents can help protect your business from copycats and competitors. Trade marks safeguard your brand’s reputation, while patents protect your unique inventions. Don’t delay—once an invention is made public, you may lose the chance to patent it.
Trade marks and patents are two essential forms of intellectual property that often cause confusion amongst business owners and innovators. If you are unsure about the differences between the two, you are not alone. However, failing to understand the distinction could expose your business to risk. This article will clarify the key differences between trade marks and patents, and help you to protect your intellectual assets effectively.
This guide explains the essentials of trade marks and the steps required to register a trade mark.
What are Trade Marks and Patents?
Trade marks and patents are both forms of intellectual property. However, they serve different purposes and protect different aspects of your business.
Patents
A granted patent provides a patentee with the exclusive right to exploit their invention for a set period of time. The term ‘exploit’ effectively means that without the patentee’s consent, others are prevented from:
- making;
- selling;
- hiring;
- using; or
- importing your invention.
Patents are an important tool to protect new and innovative products, processes, or methods.
Trade Marks
A trade mark, on the other hand, serves as a badge of origin. It distinguishes your goods and services from those of your competitors. Trade marks can take the form of:
- words;
- logos;
- slogans;
- sounds; or
- colours.
Trade marks are crucial in building and protecting your brand’s reputation in the marketplace.
Key Differences Between Patents and Trade Marks
The fundamental difference between patents and trade marks lies in what they protect:
- Patents protect inventions, such as innovative products, processes, or methods; and
- Trade marks protect your business’ unique branding.
Let’s explore other important distinctions between patents and trade marks.
1. The Registration Process
In Australia, both trade mark and patent applications are filed with IP Australia.
For trade marks, an application must include details of:
- what the trade mark is; and
- the goods and services the trade mark will be used for.
An application must include a patent specification with a detailed description of the invention, drawings, and the inventor’s details.
In both instances, IP Australia examines to determine if the trade mark or patent application meets various legal requirements.
2. Duration of Protection
Trade mark protection lasts 10 years, with the option to renew indefinitely every 10 years if the trade mark remains in use.
The duration of a patent protection varies:
- standard patents last for 20 years from the date of filing;
- innovation patents (which have been phased out) last for 8 years; and
- some pharmaceutical patents may be extended up to 25 years.
3. Rights When Unregistered
A trade mark can exist without registration. Unregistered trade marks, known as common law trade marks, can provide limited protection in cases where an almost identical mark has been used for similar goods or services. However, registered trade marks offer stronger, more comprehensive protection and are easier to enforce.
On the other hand, inventions already exposed to the public, or those already used or sold, cannot receive patent protection. The danger of losing your rights over an unpatented idea makes registration imperative.
Continue reading this article below the formKey Takeaways
The fundamental difference between trade marks and patents lies at the core of what they protect. Trade marks safeguard your brand identity, while patents protect your inventions. Trade marks can protect various branding elements, such as your business name and logo. On the other hand, patents grant exclusive rights to exploit an invention for a specific duration. It is important to consider registering both forms of intellectual property to ensure comprehensive legal protection for your business, as unregistered rights offer limited security.
If you need assistance with registering your trade marks or protecting your intellectual property, our experienced IP lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
How long does protection last for registered trade marks and patents?
Protection for a registered trade mark can last indefinitely as long as you renew your registration every 10 years and continue to use the mark. Patent protection, however, has a limited duration. Standard patents in Australia typically last for 20 years from the filing date, after which the invention enters the public domain.
Can I have both a trade mark and patent for one product?
Yes, a patent can protect your product’s features, while a trade mark can protect its brand name or logo.
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