Trademarks and patents (by definition) are entirely different things.
A trademark is a ‘sign’ that one trader uses or intends to use in order to distinguish their products or services from the similar products or services of others. Often we might call this a brand name or logo for example. The ‘thing’ you apply to a product or service that lets consumers/others know from where it has originated; often we refer to this as “a badge of origin”.
A patent however is the right given to a device, method, process or substance that is new, inventive (or in some cases innovative) and useful. Often called ‘inventions’. They must be new and involve an inventive step and be useful or they will not necessary lead to a valid right.
What’s the difference in terms of cost and IP protection?
Costs different both in official fees and professional fees. Patents are more complicated in their filing, usually requiring proper specification and description drafting by a qualified patent attorney with some experience in the area of invention, so professional fees will often be higher in obtaining patent protection than trademarks. The difference in IP protection is difficult to answer, as they are protecting two different things. Once protected they each afford the owner with rights to use or ‘exploit’ the property, licence use to others and take steps to enforce their rights if they are infringed.
Both are typically a country-by-country process to obtain rights. A difference here is that trademarks can be filed overseas at any time. Due to the ‘newness’ requirements of a patent, an applicant will have a period of time from first filing to enter other countries to obtain equal rights in other countries.
Does a patent last as long as a trademark? Whats the difference in terms of duration?
No. In Australia, a trademark can last forever, so long as it is renewed each 10 years and not subject of any sort of removal/cancellation proceeding. Patents have maximum life-spans. In Australia this is 8 years for an innovation patent or 20 years for a standard patent.
Would you require a patent AND a trademark at the same time?
On occasion it might transpire that an applicant needs to consider both at the same time. Most businesses would have at least 1 trademark (e.g. core brand name), however, not as many would have need for patenting.
Given a patent is the right granted to something that is new, inventive and useful not all businesses or persons are involved in truly inventive or innovative products/processes/substances etc. If a person is in need of protecting an invention, it would ofen be the case that they need to consider that first and before trademark registration due to the ‘newness’ requirement.
Disclosing your invention too early and before patent filing could result in invalid rights as it would not be deemed ‘new’ at the time fo filing the patent applications. As a trademark does not have a newness requirement, it’s less risky to delay its filing in a lot of cases. We would often suggest filing a trademark application as soon as a new ‘brand’ or other distinctive sign is created, as it is a lengthy process to register so filing as soon as possible moves things along.
A person might consider filing both at the same time for a couple of reasons though, even if not legally required to do both. For example, needing to secure protection by a certain point in time (considering the process does take time), or, in the event they are perhaps seeking investment into their product/service/business. Having IP secured can help secure investment, as it is seen as a bit more safe or viable if the investor knows that there will be limited competition (if any) due to monopoly of rights.
Who can assist with registering patents?
We strongly encourage any client with patent needs to consult with a registered patent attorney. You can find patent attorneys via ttipattorney.gov.au, or contact our office for a referral to an attorney we have worked with and referred to previously and generally recommend.
We are TRADEMARK EXPERTS
For independent, professional and friendly advice, contact us and let us help you with any aspect of your trademark, from the application process, to risk minimising strategies, renews, assistance with enforcing your rights and disputes with other parties.
Quick Off the Mark® is a division of Mark My Words Trademark Services Pty Ltd (MMW). MMW was founded in 2011 and is headed by Jacqui Pryor, a registered trade marks attorney with more than 16 years experience.
In 2015 MMW acquired Quick Off the Mark®, which is a fast and affordable Australian trademark registration service. Quick Off the Mark® offers fixed fees that are affordable to help Australian businesses register their trademarks.
Disclaimer – The advice provided in this blog is general advice only. It has been prepared without taking into account your business objectives, legal situation or needs. Before acting on this advice you should consider the appropriateness of the advice, having regard to your own objectives, legal situation and needs.