Roughly 300,000 people ask Google every single month, what is the difference between a trade mark and a patent? So if you are confused between the two, you are not alone. But failing 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? We help alleviate this confusion by explaining these differences through three key examples below.

Patents and Trade Marks Definition

Trade marks and patents form part of the area of law known as intellectual property. Statute governs Australia’s intellectual property law and separate regimes extensively cover trade marks and patents. Although there is some overlap between the two, they fundamentally protect different things.

Patents

Patents are granted to protect inventions or innovations and provides the patentee with the exclusive right to exploit the invention or innovation for a limited period. The term ‘exploit’ is a broad term effectively meaning that without the patentee’s consent, others are prevented from making, selling, hiring, disposing of, using, importing or keeping the invention or innovation for any purpose.

Trade marks

On the other hand, a trade mark protects business names and marks where it is intended to be used to differentiate the goods and services of one owner from another. These business names and marks can take the shape of:

  • Signs;
  • Logos;
  • Symbols;
  • Words; or
  • Phrases.

Once a trade mark is registered, it provides the proprietor with the exclusive use of that mark. It also gives them the exclusive right to authorise others to use the mark.

Further Differences Between Patents and Trade Marks

As outlined, the fundamental difference between trade marks and patents is the substance in which they protect. There are also other distinctions, some of which have been outlined below:

1. Registration Process

There is a different process involved between how to register a trade mark and how to patent an invention.

Briefly, the trade mark owner must first register their mark with IP Australia. The owner must have the intention to use the mark. They will also need to demonstrate what classes of goods and services the trade mark is intended to be used on.

IP Australia also administers the patent system. A patent can be granted to the following:

  • The inventor; or
  • A person who has been given the rights to the invention by the inventor; or
  • A company or organisation that has created the invention.

The application should include specifications, drawings, descriptions and any claims regarding your invention. Often the patent registration process can be lengthier and more costly than trade mark registration due to the assessment criteria.

2. Duration of Protection

A registered trade mark lasts for ten years. However, you can renew and own your trade mark indefinitely, provided you renew your application within these 10-year blocks.

Depending on the type of patent registered, the duration of protection differs. Standard patents subsist for a term of 20 years. Innovation patents only last for eight years. Pharmaceutical patents can last up to 25 years. Unlike trade marks, you cannot renew a patent application.

3. Rights When Unregistered

A trade mark can technically exist without registration. Common law trade marks, as they are known, provide limited protection where almost identical trade marks have been used concerning matching goods or services. Often, these rights are not legally enforceable without proper registration.

On the other hand, inventions already exposed to the public may not be offered patent protection at all. The danger of losing your rights over an unpatented idea make registration imperative.

Key Takeaways

The difference between trade marks and patents lies at the core of what they protect. Trade marks protect business names and marks and distinguish them from goods and services of other owners. Patents, on the other hand, protect inventions. If you have further questions about registering your trade mark or patent, or how to best protect your IP, get in touch with our IP lawyers on 1300 544 755.

Stephen Yoon

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