Trademark and patent: what’s the difference and what to choose for your business?

In the world of business, where everyone strives to stand out and protect their achievements, the issues of intellectual property are becoming especially relevant. And very often aspiring entrepreneurs (and not only aspiring entrepreneurs) confuse two key concepts: “trademark” and “patent“. Sounds similar at first glance, but in fact the difference between the two is fundamental. This article, prepared by Polikarpov Law Firm lawyers, is designed to set the record straight and help you understand the differences between trademark and patent and make an informed choice to protect your business.

It is important to realise that both trademark and patents intellectual property. But! They protect completely different aspects of your business. The trade mark is, conventionally speaking, the “face” of your business, the way you are identified by consumers. A Patent on the other hand protects your innovative developments, technical solutions, design. So, what exactly do you need? Let’s figure it out together.

I. Trade mark (TM): brand protection

Before we delve into the differences, let’s be clear about the terminology. Let’s start with the trademark, because it is most often the first piece of intellectual property that a business encounters. In this section, we’ll take a closer look at what a trademark is, what exactly it protects, and the benefits of registering it. In other words, we’ll find out why a trademark is the cornerstone of protecting your brand.

Subsection 1.1: Definition of TM

What exactly is a trademark (TM)? In official language, trademark is a designation that serves for individualisation of goods and services of some persons and distinguishes them from similar goods and services of other persons. Simply put, it is something that helps consumers recognise exactly your products or services among many others.

It can be:

• A word or phrase: For example, “Coca-Cola”, “Apple”, “Polikarpov Law Firm”.
• Image (logo): The famous Apple apple or Nike tick.
• Slogan: “Just Do It” (Nike) or “Discover Ukraine” (tourist slogan).
• Combination of words, images, colours: For example, McDonald’s logo – yellow arches on a red background.
• Volumetric designation: The original shape of a Coca-Cola bottle.
• Sound designation.
• Colour, as such.

The main function of a trademark identification. It allows the consumer to instantly understand who the producer of a product or service is and to associate a certain level of quality, reputation, expectations with this producer. It is, if you like, a kind of “quality mark” that helps the consumer to make a choice. A trademark is thus not just a designation, but an important intangible asset of a business that directly affects its brand.

Subsection 1.2: What does a TM protect?

It is important to be clear about what exactly a trademark protects. Trademark Protects not the product itself, its production technology, or its design. Trademark Protects the brand. That is, the reputation of your business, the recognisability of your products or services, and the trust of consumers.

Imagine two companies that produce smartphones of the same quality and functionality. But one company sells its smartphones under a well-known, registered trademark and the other under an unknown name. Which smartphone is the consumer most likely to choose? The answer is obvious.

A trade mark gives you the exclusive right to use a certain designation to mark your goods or services. And no one else has the right to use that designation (or one that is confusingly similar) for the same or similar goods/services. This protects you from unfair competition when someone tries to “burnish” your reputation by using a similar name or logo.

Examples of items that can be registered as TM:

• Company name: “Microsoft”, “Samsung”, “Roshen”.
• Product name: “iPhone”, “Galaxy S”, “Royal Taste”.
• Logo: Adidas’ three stripes, Apple’s bitten apple.
• Slogan:“Think different” (Apple), “Impossible is Nothing” (Adidas).

Thus, a trademark is primarily a tool to protect your brand, your reputation and recognisability in the market. It does not protect your technical solutions (patents exist for that), but it does protect something that is often much more valuable – the trust of your customers.

Subsection 1.3: Advantages of TM registration

Registration of trademark is not a mandatory procedure. Theoretically, you can use any designation for your goods or services without registration. But! Registration of trademark in UKRNOIVI provides you with a number of significant advantages that significantly strengthen your legal protection and contribute to the development of your business.

Let’s take a look at the main advantages:

1. Exclusive Right of Use: Registration of TM gives you, as the owner, the exclusive right to use that designation for those goods and services for which it is registered. This means that no one else has the right to use the same or similar designation for the same or similar goods/services without your authorisation.
2. Preventing unfair competition:Registration of TMis a powerful tool to fight unfair competition. If someone tries to use a name or logo similar to your trade mark, you will be able to prevent him from doing so by applying to the court or Antimonopoly Committee of Ukraine.
3. Possibility to issue licences:You can grant others the right to use your trademark on the basis of a licence agreement. This can be an additional source of income for your business.
4. Increased business value:Having a registered trademark significantly increases the value of your business. A trademark stands as an intangible asset that can be valued and accounted for when selling your business or attracting investment.
5. Ability to use a warning mark (®):After registration, you have the right to use the “®” symbol next to your mark. This alerts others that your trademark is protected by law.
6. Protection from “patent trolls”: TM registration can be used as a tool to protect against unscrupulous persons who register TMs not for the purpose of use, but to extort money.
7. The possibility of entering into the Customs Register: We have already talked about this earlier, but it is worth mentioning again. The entry of TMinto the Customs Registry Helps to fight counterfeiting and“grey” imports.

Thus, registering a trademark is not just a formality, but an investment in the protection and development of your business. It gives you real legal tools to fight unfair competition and increases the value of your brand.

II. Patent: protecting innovation

If trademark protects your brand that is, conditionally speaking, the “face” of your business, then patent protects what is “inside” – your innovative developments, technical solutions, unique product design. In this section, we will look in detail at what a patent is, what types of patents exist, what exactly they protect, and what benefits patenting provides. In other words, we will find out how a patent can become a strong shield for your innovation.

Subsection 2.1: Types of patents

A patent is a protective document. It certifies authorship of a invention, useful model for industrial design. A patent also grants the patentee the exclusive right to use that subject matter for a specified period of time. It is important to realise that there are different types of patents and each protects a specific type of innovative development.

Let’s take a closer look at them.

Let’s start with the invention patent. This is perhaps the best known type of patent. It protects a technical solution that necessarily fulfils three basic criteria:

• Novelty: The solution must be unknown in the world at the time you apply.
• Inventive step: The important point is that the solution must not be obvious to a person skilled in the art.
• Industrial applicability: The solution must be suitable for use in industry, agriculture or other field.

Examples of inventions may include: a new drug, a new way of producing something, a new device (e.g., a new type of internal combustion engine).

Then there is the patent for a utility model. This is, we can say, a “simplified” version of the patent for invention. It also protects a technical solution, but the requirements are less stringent. Namely:

• Novelty: The solution must be unknown in Ukraine (and not in the world, as for invention).
• Industrial applicability: The solution must of course be usable.

No inventive step is required for a useful model! Examples of useful models are: a new device, a new process (which is, for example, an improvement of an already known process).

And finally, a design patent. This type of patent protects the appearance of the product. That is, its design, shape, colour, arrangement of elements. In other words, how the product looks, not how it works. The design must meet the requirement of novelty (the design must be new in the world). In some cases, originality may also be required. Examples of industrial designs: the original shape of a bottle, the design of a car, the look of furniture or, say, a unique jewellery design.

So, the choice of the type of patent directly depends on what exactly you want to protect: a technical solution (inventions useful model) or the appearance of a product (industrial design).

Subsection 2.2: What does a patent protect?

Unlike a trademark which, as we have learnt, protects the brand, a patent protects the innovative essence of your design. That is, the technical solution or design, not the reputation or recognisability in the marketplace.

If you have been granted a  patent for an inventionor useful model it means that no one else has the right without your permission:

• Make products that use your invention or useful model.
• Use your patented method of production.
• Sell, import or otherwise put into civil circulation products created using your invention or useful model.

If, however, you have been granted a design patent it means that no one else has the right without your authorisation:

• Make products with the same or similar design.
• Sell, import or otherwise put into civil circulation products with the same or similar design.

In other words, a patent gives you a monopoly on the use of your innovation during the term of the patent. This allows you to recoup your development costs, profit from its use, and protect yourself from unfair competition from those trying to copy your advances. It is important to understand that the patient does not prohibit others from conducting research aimed at creating new and improved solutions based on your invention or useful model.

Subsection 2.3: Advantages of patenting

Patenting Is certainly not a free procedure, and it requires some effort and time. But! The advantages that patent provides often more than recoup these costs. Let’s consider the main ones:

1. Monopoly right to use: This is perhaps the main advantage. A patent gives you the exclusive right to use your invention, utility model or industrial design for the term of the patent(typically 20 years for inventions, 10 years for utility models, and up to 25 years for industrial designs). No one else has the right to use your innovation without your permission.
2. Licensing option: You may grant others the right to use your invention, useful model for industrial design under a licence agreement. This can be either a one-off payment (lump sum payment) or regular payments (royalties). This is an additional, sometimes very significant, source of income.
3. Increased competitiveness: Having a patent significantly increases your competitiveness in the marketplace. You can use patent asa marketing tool, emphasising the innovation and uniqueness of your products.
4. Protection against unfair competition: Patentallows you to effectively fight competitors who try to copy your designs. You can go to court and seek to stop the infringement, seize the infringing products and recover damages.
5. Increasing business value: Patentlike trademark an intangible asset that can be valued and taken into account when selling a business, attracting investment or obtaining a loan.
6. Incentivising innovation: The patenting system generally incentivises innovation. Knowing that their developments will be protected, inventors and companies are more willing to invest in research and development.

Thus, patenting is not only a way to protect your innovations, but also a tool to improve your competitiveness, generate additional revenue and increase the value of your business.

III. Comparative table: TM and Patent

So, we have examined in detail what a trademark and what a patentare, what objects they protect and what advantages they provide. Now, in order to finally dot all the “i’s” and clearly demonstrate the differences between these two tools of intellectual property protection, we will summarise all the information in a comparative table. This will help you quickly orientate yourself and make a preliminary conclusion about what exactly you need to protect your business: trademark, patentor, perhaps, both.

This table will help you clearly see the difference between a trademark and a patent and understand which intellectual property protection tool (or combination thereof) is most appropriate for your particular case.

IV. What to choose for your business: TM or patent (or both)?

Now that we have thoroughly understood the differences between a trademark and a patent, the most important question is: what exactly do you need to protect your business? Is it enough to register a trademark or is it necessary to patent your developments? Or maybe you need an integrated approach? The answer depends on the specifics of your business, what exactly you are creating and how you plan to use it. In this section, we will look at different scenarios and make specific recommendations.

Subsection 4.1: If you have developed a new product/technology

If you have developed a fundamentally new product or technology that is of a technical nature and meets the criteria for patentability (novelty, inventive step/industrial applicability), you probably need a patent.

What exactly is a patent?

• If your solution is fundamentally new, unknown in the world, and not obvious to a person skilled in the art, then you should consider obtaining a patent for invention. This will give you the maximum level of protection for 20 years.
• If your solution is new only in Ukraine and does not necessarily have an inventive level, but is industrially applicable, a patent for utility model will be suitable. This is an easier and faster way to get a patent, although its validity period is shorter (10 years).

For example, you have developed:

• A new design for an internal combustion engine that significantly improves its efficiency. This is likely to be a invention.
• A new method of water purification that is more effective than existing ones, but is not fundamentally new. This can be either a invention or a useful model(depending on the level of novelty and inventive step).
• A novel device for securing a mobile phone in a car. This is most likely a useful model.

A patent in this case will protect the very essence of your design, prevent competitors from copying your technology or product, and give you a monopoly on its use. But a Patentwill not protect the name of your product or its logo. You need a trademark for that.

Subsection 4.2: If you have developed a unique design.

If your innovation lies not in the technical solution but in the appearance of the product, if you have developed an original and unique design, you need a design patent.

An industrial design protects exactly the aesthetic characteristics of the product: shape, colour, configuration, ornament, arrangement of elements. It does not protect the functionality of the product.

For example, you have designed:

• An original design for a smartphone case.
• The unique shape of a drink bottle.
• Unique furniture design.
• An original design for textiles.

In all these cases, a design patent will not allow others to make, sell or import products with the same or similar design without your authorisation. This will protect your design investment and help you stand out in the marketplace. Again, a design patent will not protect the product name or logo. It still requires a trademark.

Subsection 4.3: If you want to protect your name/logo

If your goal is to protect your company name, product name, logo, slogan, or other designation that identifies your business and differentiates it from competitors, then you need a trademark.

A trademark does not protect technical solutions or design. It protects the brand – your reputation, your recognisability, the associations that consumers have with your designation.

For example, you want to protect:

• The name of your company: “Innovative Technologies”.
• Name of your new product: “SuperSmart”.
• Your company logo: image of a stylised lightning bolt.
• The slogan of your advertising campaign: “We make the future!”.

In all these cases, registering your trademark with UKRNOIVI will give you the exclusive right to use these designations for your goods or services and to prohibit others from using them or similar designations that could mislead consumers. This will protect you from unfair competition and help you build a strong, recognisable brand.

Subsection 4.4: Integrated defence

In an ideal world, to maximise protection for your business, it is advisable to take an integrated approach, i.e. combine trademark and patents(of course, if there is something to patent).

Why it matters. Because trademark and patent protect different aspects of your business. A trademark protects the brand and a patent protects innovation.

Consider an example:

A company has developed a revolutionary new smartphone. What needs to be protected?

1. Technical solution:New technologies used in a smartphone (for example, a new type of processor, a new camera system, a new way of wireless charging) can be protected by patents for inventions and useful models.
2. Design:The unique appearance of a smartphone (body shape, button layout, colour scheme) may be protected by a design patent.
3. Brand: The name of the smartphone (“SuperNova”), the company logo, the slogan of the advertising campaign – all this can (and should!) be protected by a trademark.

This comprehensive approach provides maximum protection:

• Competitors will not be able to copy your technical solutions.
• Competitors will not be able to imitate your product design.
• Competitors will not be able to use your name or logo (or similar designations) for their products.

Thus, you create a powerful “protective barrier” around your business, which minimises the risks of unfair competition and allows you to fully benefit from your innovations and marketing efforts.

Conclusions

Let us summarise our discussion of trademarks and patents. We found that these are two different tools for protecting intellectual property that can nevertheless effectively complement each other. Trademark Protects your brand the name, logo, slogan, that is, what identifies your business and distinguishes it from competitors. A patent on the other hand protects your innovations – technical solutions (inventions and useful models) or unique designs (industrial designs).

The choice between trademark and patent(or a combination of the two) depends on exactly what you want to protect. If you’ve developed a new product or technology, you probably need a patent. If you have created a unique design – you need a design patent. If you want to protect a name, logo or slogan – you need a trademark. And ideally – for comprehensive protection – you should use both trademarks and patents(if you have something to patent).

I hope this article has helped you understand the differences between a trademark and a patent and make an informed choice about protecting the intellectual property of your business. Remember that timely and competent protection of your rights is an investment in the future of your company.

And, of course, if you are just starting out in the business world and want to learn more about the need to register a trademark, I recommend you read our article: “Registration of a trade mark: a necessity for your business“. In it you will find a lot of useful information and practical advice. And the experts of Polikarpov Law Firm are always ready to provide you with professional legal assistance in matters of intellectual property protection.