question.jpgIn Trademarks

How is a trademark different from a patent?

Patents and trademarks are generally very different creatures. A patent prevents others from making, using or selling new inventions. A trademark, however, protects a name, phrase or slogan that is commercially related to a product. For example, suppose you have a patent on a new kind of pencil, and you are selling that pencil as the Pencillator. If someone made a copy of your pencil and tried to sell it, you could prevent them from doing so because of your patent. However, if they tried to sell a pencil that was very different from yours, but they tried to sell it as the Pencillator, you might be able to prevent them from using the brand name “Pencillator” if you have trademark rights in that name.

The one place where patents and trademarks may overlap is with regard to design. Design patents protect the ornamental design of a product, such as the way a bicycle helmet looks. While trademarks are generally used to protect phrases, slogans or logos, trademark law can also be used to protect the shape/design of a product if that design is so distinctive that people associate it with the product’s seller (i.e., trade dress). So if people recognize that a bicycle helmet is made by a specific company because of the shape/design of the helmet, trademark law may protect the helmet’s design.