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DIFFERENCE BETWEEN TRADEMARKS AND PATENTS

INTRODUCTION

Intellectual property is considered to be a creative work by the human intellect, its main purpose is to promote science and technology along with arts, literature and various other creative works and to encourage and reward this creativity. The intellectual property thus, includes copyright, trademarks, patents, industrial designs, geographical indications, trade secrets, plant varieties etc. Although all these are very different, people often tend to get confused between them. This article aims at clarifying the difference between trademarks and patents as form of intellectual property.


TRADEMARKS

A trademark includes any device, brand, heading, label, name, word, number, signature, shape of goods, packaging or combination of colours etc. In India it is governed by the Trademarks Act, 1999. According to section 2(1)(zb) of the act, a trademark should be capable of being graphically represented and should also be capable of differentiating the goods and services of one person from those of others.


PATENTS

Patents are governed by the Patents Act, 1970 in India. Patents grant exclusive right to the person to exploit his invention for a limited period of time. In other words, during this limited period, the inventor holds the right to exclude anyone else from commercially exploiting his invention. An invention is patentable only when it is new, involves an inventive step, and is capable of industrial application.


DIFFERENCE BETWEEN TRADEMARKS AND PATENTS

Trademarks and Patents can be differentiated on the following grounds-

  • Definition-

Trademarks refer to a mark, word, name, symbol etc which a person adopts and uses in order to identify and differentiate his goods and services from those of others.

Patents refer to an exclusive right granted by the government through the Patent Office for an invention for a limited period of time.

  • Objective-

Trademark law primarily has twofold objective; firstly to protect the public from confusion and deception by identifying the source of particular product as distinguished from other similar looking deceptive products, and secondly to protect the trademark owner’s trade as well as goodwill which comes along with the trademark.

Patent law works on the rationale of not only recognizing and rewarding the creativity of the inventor but also serve as an inspiration for future developments which ultimately contribute to the technological development and advancement of a nation.

  • Prevents-

Trademarks prevent others from using a mark which highly resembles the mark of the company as it can cause confusion to the public.

Patents act as an exclusive right, granted for a limited time period and it prevents others from commercially exploiting the patented product by way of using, selling, producing etc.

  • Criteria for grant-

Trademark are granted for marks which are-

  1. Capable of being graphically represented either in paper or digital form;

  2. Capable of distinguishing goods or services of one person from those of others; and

  3. Is not deceptive

Patents are granted for inventions which are-

  1. Novel i.e. on the date of filing of patent application, it should not form part of the state of art;

  2. Involve an inventive step; i.e. the invention includes technical advancement or has economic significance, or both; and

  3. Capable of industrial application i.e. the invention is capable of being made or used in an industry.

  • Duration and Renewal-

Trademarks are for an indefinite period; however, they are to be renewed after every 10 years till the trademark is being used.


Patents are granted for a limited period of 20 years and can’t be subjected to renewal post this period. However, during this period a renewal fee is to be paid on a yearly basis for maintenance.

  • Registration-

Registration of Trademarks is discretionary, however, for complete protection it should be registered else remedy under passing off could be resorted to in case of infringement.


For patents, it is mandatory to get registration by filing a complete specification, until then the patent is not granted.

  • Benefits of registration-

Trademark registration serves as a legal proof of the ownership of the mark by the company by acting as brand recognition and also helps in case of infringement, by providing necessary legal remedies against the same.


Since it is mandatory to get an invention registered in order to get a patent, all the rights of excluding others flow from it.

  • Rights granted-

Registration of trademark guarantees the owner the exclusive right to use the mark in that particular class of goods or service in which it has been registered.


Patent registration gives a negative monopolistic right to the inventor whereby he could exclude others from using, selling or exploiting it in any way.

  • Rights if unregistered-

It is possible for a trademark to exist without registration as the law does not require mandatory registration. However, problems might occur when you try to get this right legally enforced, as mostly the same cannot take place without registration.


Patent law in India require mandatory registration as an invention that is known to the public or is in public domain cannot be patented and therefore you may lose all the rights over the unpatented invention carried by you, making it imperative to get the registration done.

  • Jurisdiction of protection granted-

According to the Trademarks Act, 1999 trademarks are territorial in nature. There is no such thing as a worldwide trademark, however, by way of Madrid Protocol Trademark can be registered in any number of countries that are party to the protocol through single form and language on payment of fee in single currency.


Patents too are territorial in nature as per the Patents Act, 1970. For them too there cannot be a worldwide registration, however, by virtue of Patent Corporation Treaty protection can be sought in multiple countries. This treaty only enables efficient application system by single form in single language and on payment of fee in single currency and does not grant patent, granting of patent is in the hand of individual countries.


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INTRODUCTION Trademarks are a form of Intellectual Property that refers to marks that are capable of being graphically represented and can distinguish one's goods or services from that of others. Just