No Confusion: The Differences Between Patents, Trademarks, and Copyright

30 September, 2024
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Industrial Property, Intellectual property
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Lucas Charnet


Industrial and intellectual property is a topic that often causes confusion. Every time a new idea arises, we hear that it needs to be registered. However, it’s crucial to understand that ideas themselves cannot be registered. What we can actually protect is the materialization of those ideas, whether through an invention, an artistic work, or a business. This distinction is fundamental to understanding the three forms of protection that the law offers us: patents, trademarks, and copyright. Each of these protects different aspects and has distinct legal treatment.

Patents

Let’s start with patents, a legal mechanism that protects inventions. This type of protection is primarily aimed at technical advances that represent an innovation in some field. According to the Patent Law in Spain, a patent grants its holder the exclusive right to exploit the invention for a limited period, generally 20 years from the application date. During this time, the holder has a monopoly on the manufacture, sale, or use of their invention, and can prevent others from using it without their consent.

Duration and Territoriality

The protection period for a patent is uniform: in most countries, the validity is 20 years, as long as the corresponding fees are paid to keep it active. However, the protection offered by a patent is territorial, meaning it is only valid in the countries where it has been registered. If an invention is registered only in Spain, the protection will only be effective in Spanish territory. To obtain protection in other countries, the holder must extend the application through international systems such as the Patent Cooperation Treaty (PCT), or apply in each jurisdiction individually.

Constitutive Registration

The constitutive nature of registration is one of the key features of patents. This means that until the registration has been applied for and granted, the holder cannot claim exclusivity over the invention. In other words, without registration, there is no patent right, so any third party could exploit the invention without legal consequences. In Spain, this registration is carried out through the Spanish Patent and Trademark Office (OEPM), but it can be extended at a European level through the European Patent Office or globally using the PCT system.

Example

To better illustrate, imagine a Spanish company develops an innovative technology for electric motors, making them more efficient and eco-friendly. This technology could be protected by a patent. Once registered, the company would have the exclusive right to commercialize those motors or license the technology to other companies for the next 20 years. Without the patent, anyone could copy the idea and benefit from the innovation, which would impact the company’s investment and effort.

Trademarks

On the other hand, trademarks are the legal tool used to identify and differentiate products or services in the market. Through the Trademark Law, holders can register a distinctive sign, such as a name, logo, or slogan, that represents their product or service. This registration grants the owner the exclusive right to use the trademark and prevents others from using it without authorization.

Duration and Territoriality

Unlike patents, trademark protection can be indefinite, as long as it is renewed every 10 years. In other words, as long as the holder continues to renew the registration, they can continue exploiting and protecting their trademark indefinitely. However, like patents, protection is territorial. A registration carried out in the Spanish Patent and Trademark Office: Oficina Española de Patentes y Marcas (OEPM) only protects the trademark in Spain. To obtain international protection, there are options like the European Union Trademark system, which covers all EU member countries, or the Madrid System, which allows the trademark to be registered in multiple countries simultaneously.

Constitutive Registration

Trademark registration is also constitutive, meaning that until it has been registered, the holder cannot claim exclusive rights over it. This is crucial to prevent others from using the same distinctive sign for similar products or services. For example, if a company launches a new soft drink and identifies it with a unique logo, registering that trademark will allow them to prevent other companies from using that same logo or a similar one, avoiding market confusion.

Copyright

Copyright protects creative works such as books, music, paintings, photographs, films, and even software. In Spain, the Intellectual Property Law: (Ley de Propiedad Intelecutal) regulates this legal figure, which, unlike patents and trademarks, does not require formal registration to grant protection. From the moment a work is created and fixed in a physical or digital medium, the author automatically acquires rights over it.

Duration and Territoriality

Regarding the duration of protection, copyright lasts for the lifetime of the author and extends for 70 years after their death. This term is longer compared to patents and trademarks and ensures that both the author and their heirs can benefit economically from the work’s exploitation for a significant period. Unlike patents and trademarks, copyright protection is not limited to a specific country. This means that, even if the work is not registered, it is automatically protected worldwide through international treaties such as the Berne Convention, which includes more than 170 countries.

Optional Registration

Although it is not mandatory, registering the work in the Intellectual Property Registry can be highly recommended, as we’ve seen in other articles on this blog. This registration serves as proof in case of disputes over authorship, plagiarism, or rights to exploit the work. For example, if a musician composes a song, they don’t need to register it to be protected, but if they do, they will have legal proof that they are the original author, which is useful if someone else tries to claim the work or copy it without permission.

Comparative Protection Table

| Aspect | Patents | Trademarks | Copyright |
| --- | --- | --- | --- |
| What it protects | Inventions and innovations | Distinctive signs (names, logos) | Creative works (literary, artistic, etc.) |
| Duration of protection | Up to 20 years | Indefinite (renew every 10 years) | Author’s lifetime + 70 years |
| Constitutive registration | Yes | Yes | No (though recommended) |
| Territoriality | Protection by country | Protection by country | International protection |

The Importance of Legal Advice

It is essential that creators and entrepreneurs understand the differences and similarities between these protection figures. Each of them offers a specific type of safeguard for creations and innovations. Therefore, it is crucial to have proper legal advice to choose the most suitable form of protection depending on the nature of the project or product. A specialized legal advisor can help navigate the maze of industrial and intellectual property, ensuring that both your creations and the identity of your business are well protected.

At MES Advocats, we offer comprehensive advice on the registration, protection, and management of patents, trademarks, and copyright. Our team ensures personalized and efficient support in every process, ensuring that your creations, products, and business identity are fully protected. We have extensive experience to provide you with a fast service tailored to your needs. If you need more information or are interested in a quote, feel free to contact us.

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