Is That a Patent, Trademark or Copyright?

Written by JGPC Business Law on February 23, 2017. Updated July 2026.

Businesses create valuable intellectual property every day, but not every idea is protected in the same way. This article explains the basic differences between patents, trademarks, and copyrights, what each one protects, and why selecting the appropriate form of intellectual property protection is an important part of building and protecting a business.

Key Takeaways

• Patents protect new and useful inventions, processes, machines, and certain technological innovations.
• Trademarks protect brand names, logos, slogans, and other identifiers that distinguish goods and services in the marketplace.
• Copyrights protect original creative works that are fixed in a tangible form, such as books, music, artwork, videos, and software code.
• Ideas alone generally cannot be protected until they are expressed or developed into a legally protectable form.
• Different aspects of a single product or business may qualify for multiple forms of intellectual property protection.
• An experienced intellectual property attorney can help determine which protections best fit your invention, brand, or creative work.

If you wouldn’t know a patent if one bit you[1], you are not alone. Most of the public doesn’t know the difference, and there are lawyers who are uncertain of the differences. Today, though, you are lucky enough to have this article in front of you to learn the difference. Bear in mind, however, this is just an overview. If you want to know more, refer to the footnotes.

Patents

First –  a patent provides a patent owner with the exclusive right to exclude others from making, using, offering for sale, or selling the process, machine, manufacture, or composition of matter throughout the United States.[2] In other words, if the idea isn’t a process, machine, manufacture, or composition of matter that can be made, used, offered for sale or sold, a patent won’t cover it.

Trademarks

Second – a trademark is a word, term, name, symbol, or device, or any combination thereof used to distinguish the goods or services of one person in commerce from the goods or services of another person.[3] So, if the idea is used as a brand of a company’s goods or services, it is a trademark.

Copyrights

Third – copyright applies to literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, and motion pictures and other audiovisual works, sound recordings; and architectural works in any tangible medium of expression[4]. Copyright thus applies only if (1) the idea is within one of these 8 areas and (2) the idea is recorded in a tangible medium of expression.

So, what is the ‘takeaway’ from these definitions?

One – Ideas alone are not protectable. To apply for a patent, trademark registration, or copyright registration, the idea must be made into something tangible, or at least recorded onto paper or into an electronic file for people to see.

Two – Ideas are not protectable if describing an act by a person. A common mistake by untrained people preparing a patent application is to refer to an act performed by a person. Something done by a person is not a process, machine, manufacture, or a composition of matter, so a patent does not apply. The same applies for copyright. A registration for choreography or other act performed by a person (such as yoga) applies to what is on the document. If someone sees you or someone else perform your choreography or yoga, and then, based on memory, does your choreography or yoga, or even teaches someone else the moves, they are not infringing your copyright.[5]

Three – Patents apply to useful items created by people – not to laws of nature nor equations, nor to illegal items. There have been, over the years, patents for various machines, patents for the things that come out of machines, and even design patents for shoes, but not for burglary tools, as those are not legally useful. Be aware, also, that a patent application for a process or software must not rely solely on a law of nature or an equation describing a natural process. A patent application not claiming a tangible output or reference to a tangible item is likely abstract.[6] In addition, the output should be capable of being identified back to the process or software to avoid source vagueness.

Four – Trademarks protect the public – not the company. The purpose of trademarks is for the public to have reasonable certainty about the identity of the company supplying the purchased goods and services. The trademark registration process (and in court for infringement determination) includes a review of whether there is a likelihood of confusion by the relevant public as to the source of the goods.[7]

Five – Copyright protects creativity, not effort. For this reason, instructions, tables, lists, software syntax, fonts, and the processes within software do not have copyright protection. Copyright does, though, protect the creative material within them, such as comments and even made-up text.[8]

Later articles will provide more details on Patents, Trademarks and Copyrights.

Gerald R. Prettyman is Patent Counsel to J.G., PC., Business & Corporate Law. Mr. Prettyman earned his law degree with a Certificate in Intellectual Property with Distinction and a Master of Laws in Intellectual Property.

Frequently Asked Questions

What is the difference between a patent, trademark, and copyright?

A patent protects inventions and technological innovations, a trademark protects brands and identifiers used in commerce, and a copyright protects original creative works such as books, music, artwork, videos, and certain software.

Can one product have more than one type of intellectual property protection?

Yes. A single product may be protected by multiple forms of intellectual property. For example, the product itself may be patented, its brand name trademarked, and its instruction manual or marketing materials protected by copyright.

Can I protect an idea by itself?

Generally, no. Intellectual property laws typically protect inventions, creative works, brands, or other expressions of an idea rather than the idea alone.

When should I apply for intellectual property protection?

It is generally best to consult an intellectual property attorney before publicly disclosing or commercializing an invention, launching a new brand, or publishing original creative work.

Do trademarks protect products?

Trademarks protect the names, logos, slogans, and other identifiers associated with products or services, rather than the products themselves.

Does copyright protect business ideas?

No. Copyright protects the original expression of an idea, not the underlying concept, system, or method itself.

How can an intellectual property attorney help?

An intellectual property attorney can identify the appropriate forms of protection, prepare applications, develop a protection strategy, and help enforce your rights if infringement occurs.

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[1] See U.S. Patent 6,836,994 for a ‘Fish biting indication device’, https://www.google.si/patents/US6836994.

[2] This is a mash-up of 35 U.S. Code sections 101 and 154 (a)(1). There is more if you want know all the rights of patent owners.

[3] This is a mash-up of 15 U.S. Code sections 1125 (a) (1) and 1052. Congress apparently forgot to succinctly define a Trademark in the trademark laws.

[4] This is 17 U.S. Code § 102 rephrased to be succinct.

[5] See Bikram’s Yoga College v. Evolation Yoga, No. 13-55763 (9th Cir. 2015).

[6] In Alice Corp. v. CLS Bank International, 573 U.S. __, 134 S. Ct. 2347 (2014), the U.S. Supreme Court said that software is not eligible for a patent if the process fails to “offer a meaningful limitation beyond generally linking ‘…the [method] to a particular technological environment’.” Though the law here is abstract (oh the irony),

[7] Again, a mash-up. See 15 U.S.C. §1052, TMEP §1207 and the Model Civil Jury Instructions, 15.18 of the Ninth Circuit, http://www3.ce9.uscourts.gov/jury-instructions/node/244.

[8] People who copy information tend to be lazy. (Isn’t that the reason for making a copy?) We can then prove copying of the comments and made-up text, and thus of infringement!