What is the difference between a trademark and a patent?

Patents and trademarks are both rights granted by the patent office. But how are these two different?
I thought intellectual property rights were “patent rights,” but it seems they are different.

Trademarks and patents are both intellectual property rights and have in common that they are rights granted by the Patent Office.
However, the subject matter protected by the law is different.
Simply put, trademarks protect marks that indicate where a product or service comes from, such as a company’s logo or the name of a product.
A patent, on the other hand, protects technical inventions. It protects the superior technology of a new product developed by a company.
Let’s take a look at the details of each system.

What is the difference between a trademark and a patent?

Both patent and trademark rights are intellectual property rights, but they are actually rights protected by different laws.
So what are the differences and distinctions between the two?
This article clarifies the differences between patents and trademarks and explains how each is used.

Difference between trademark and patent (definition)

A “trademark” is a “mark” that a business attaches to its goods or services to distinguish them from those of others.

Trademarks include letters, figures, symbols, three-dimensional shapes or colors or combinations thereof, sounds, holograms, etc., and are protected under the Trademark Law.

Specifically, a variety of items are registered as trademarks, including the naming of products and services, company names, brand logos, packaging designs, sounds used in commercials, and store exteriors.

On the other hand, “patent” refers to “an administrative act granting patent rights in accordance with the Patent Law” or “patent right”. (Digital Daizensen)

An “invention” protected under the Patent Law is defined as “a high-level creation of a technical idea that makes use of natural laws. Specifically, new things (chemical substances, industrial products, equipment, etc.), methods, programs, and ways of making things are considered inventions.

However, mere discoveries of natural products, natural phenomena, etc., natural laws themselves, things that do not utilize natural laws (artificial arrangements such as game rules, etc.), skills, etc. do not fall under “inventions.

Differences in procedures from application to registration

Both trademark and patent rights are granted only after an application has been submitted to and passed a examination by the Patent Office.

When a trademark application is filed, the JPO examines ,such as, whether or not the trademark has distinctiveness, whether or not the trademark is identical or similar to a previously registered trademark, and whether or not the trademark falls under other trademarks that are not registrable. Unlike the examination for patents, which is discussed below, there is no requirement for novelty or inventive step in the trademark process, so a trademark can be registered even after the mark has been published.

During the examination by the JPO, if there is any reason why registration cannot be granted, a “notice of reasons for refusal” will be issued, and if the reasons for refusal are resolved, the trademark will be registered. If the reasons for refusal cannot be resolved, the trademark will unfortunately not be registered. If the trademark is not registered, you can try again with a different trademark.

If the trademark passes the examination, a registration fee is paid to the JPO and the trademark is registered.

On the other hand, unlike trademarks, patents cannot be examined simply by filing an application. It is necessary to file a request for examination with the Patent Office within three years of filing the application. In the examination of a patent, whether the invention is industrially applicable, whether it is novel and inventive, etc. are examined.

After passing the examination, a registration fee must be paid to the JPO, and the patent right will be granted.

The general procedural flow is the same, but the main difference is that it is necessary to request examination of the patent application.

Differences in rights identification methods

Trademark right” is the right to exclusively use a “registered trademark” for goods or services related to one’s business.

In other words, a trademark right is a right that is registered not only for the “trademark (mark)” but also for the goods or services in which the mark is used as one set.

Therefore, when applying for a trademark, it is necessary to designate the goods or services in which the trademark will be used.
When filing an application, care should be taken to cover all goods and services for which the trademark is to be used.

Trademark rights are divided into exclusive rights, which are the right to use a registered trademark exclusively, and prohibition rights, which prohibit others from using a trademark that is similar to the registered trademark.

A “patent right” is an exclusive right to work a “patented invention” (an invention registered with the Patent Office) as a business. The content of the patented invention is described in the patent claims attached to the application submitted at the time of filing.
Since the written description of the creation of a technical idea is to be the patent right, a correct understanding of the invention and a high level of writing ability are required to describe the patent specification and claims.

Difference in duration

The term of a trademark right is 10 years from registration, but it can be renewed every 10 years and the right can be maintained semi-permanently by paying an annuity.
Trademarks accumulate credibility through years of use. A trademark that has been used for many years is more valuable than a brand new trademark. In addition, since a trademark is a choice, it can be renewed repeatedly without the adverse effects of years of exclusive use, as is the case with patent rights.

On the other hand, the maximum duration of a patent is 20 years from the filing date of the patent application. Patent rights cannot be renewed.
Patents encourage the creation of inventions by granting exclusive rights for a certain period of time in exchange for making the invention public. However, the term of a patent right is set for a certain period of time in order to strike a balance between the two, so as not to impede the improvement of technology and the development of industry by allowing outdated technology to be monopolized indefinitely.

Utilization of patent and trademark

Trademark:

The registration and permanent use of a trademark by a company allows customers and consumers to distinguish where the goods or services are provided from and what quality they are by means of that trademark.

By maintaining the quality of the goods and services they provide and by continuing to use their registered trademarks, companies and others who use trademarks can ensure that their goods and services are recognized by consumers and others. Consumers can judge the quality of a product by using a familiar trademark as a landmark, and this has the advantage of allowing them to purchase products with confidence.

Patents:.
With regard to patents, by obtaining the exclusive right to use a patent for a certain period of time, it will be possible to recover the cost of development. Furthermore, we will be able to gain a product advantage in the market and thus gain price competitiveness.
In this way, profitability will increase and the cost of developing even superior technology will have the benefit of creating better products and making our lives more convenient.

Trademarks and patents can also be licensed to other companies through licensing agreements. In general, the licensor receives royalties from the licensee, so in addition to sales of the company’s products, royalty income can be earned, or royalties can be earned on patents and trademarks that are not used by the company.

In patents, a number of patents are used for a single product. Cross-licensing, in which related companies mutually grant each other patent licenses, is also actively practiced, for example, when a product cannot be made using only their own patents.

In the area of trademarks, several years ago, there was a controversial case in which Yamazaki Nabisco (now Yamazaki Biscuit) terminated sales of its signature products such as “OREO” and “RITZ”. In this case, an overseas company owned the trademark rights to “OREO” and “RITZ” and had licensed them to Yamazaki Biscuit, which terminated sales following the termination of the trademark license agreement.

As you can see, license agreements are being actively utilized even in familiar places!

I see. Trademarks and patents are different in terms of what they are trying to protect, aren’t they?
So each has its own merits!

まとめ

We hope you have enjoyed this explanation of the differences between patent and trademark protection and systems.
Our Amazing DX makes it easy to file a trademark application.
To get started, try our free trademark search.

We have a large number of patent attorneys and staff members who can handle all technical fields. We are happy to assist you with your patent applications as well.