“Copyright, trademarks & patents; what is the difference?”
Copyright, trademarks and patents are all concerned with the protection of IP (intellectual property). This is a complex and specialized area of law and although we can provide an overview of the subject you should consult an experienced IP lawyer if you need to protect any of your IP rights.
Copyright – This is the right to copy an IP or rather the right to control the copying of an IP. When a person produces a creative work such as a book, painting, music, film or computer software that item is automatically protected by copyright law. They are the only person allowed to copy that work or to grant permission to others to copy it. Copyright law varies from country to country (so check with a lawyer) but in general an IP is automatically protected by copyright as soon as it is created. (Note: Official registration of copyright is not required in the United States but if undertaken it does provide the owner of the IP with additional rights/protection over and above those provided to unregistered copyrights).
The main issue with copyright is proving that you are the original creator and the date you created it. This is covered in more detail here. Other complications arise when more than one person contributes to creating an IP or when you do creative work as part of your job (or hire someone to do creative work for you).
Trademark – A trademark is any sign which can distinguish the goods and services of one trader from those of another. A sign includes, for example, words, logos, pictures, or a combination of these. In the software industry these would be the company name/logo and the name/logo of a particular game. A company might also register a particular image (an image of Lara Croft for example) as a trademark. As with copyright a trademark does not have to be registered to gain protection (at least under UK law) but you may wish to do so for greater protection. With an unregistered trademark you have to sue under common law and attempt to prove that your trademark is associated in the public mind with your own product, and also that the other person’s goods have been mistaken for your own. With a registered trademark you may sue for infringement under trade marks law. For this to succeed you have only to show that someone else has used a mark which is the same (or similar to) your own.
As with other IP rights trademark laws may differ from country to country and a trademark will not be considered valid in a country that you don’t trade in or have not registered the trademark.
Patents - A patent gives an inventor the right for a limited period to stop others from making, using or selling an invention without their permission. Patents are intended to cover processes or products that include or contain new functional or technical aspects. Patents are concerned with, for example, how things work, what they do, how they do it, what they are made of or how they are made. Currently UK law does NOT allow for the patenting of software. The law may differ is other countries so you will need to consult a lawyer. It should also be noted that the restrictions granted to an inventor under a patent only apply in the country where the patent was granted. Unless you register your patent in another country a person or company may be able to make use of your invention in that country.
Note:
One final point to note is that ownership of IP is not automatically transferred between an employee and an employer. Normally all work done as a result of employment and the property of the employer. However this is not the case with IP (at least under UK law). A contract must include a specific assignment of IP rights if the employer wants ownership of these rights. Making mistakes with IP can be very expensive so always consult an experienced IP lawyer.
Further reading:
United States Patent and Trademarks office
United States Library of Congress Copyright Office
European Community Trade Marks
World Intellectual Property Organisation
