International Law

Patents and Trademarks ? The true distinction

By Kshitij

I picked up today?s Economic Times to get quite a shock. On the second page of the India?s leading business newspaper was a piece of article highlighting the recent decision of Ministry of Commerce to open the entire trademark database for public, thereby effectively annulling the prior practice, wherein applicants were optionally required to apply and wait for an official search report. However, as you will appreciate by reading the article, the author has gotten the story all wrong, probably because of lack of clarity regarding concepts of patents and trademarks. The article repeatedly uses the term “patent” in conjunction with “trademark”, suggesting that the author believes both these distinct forms of IP to be the same.

Such confusion is not surprising as IP in India has been a 21^st century phenomena, and people are unaware of intricacies with respect to various instruments of IP. Using the terms trademark and patent interchangeably is quite common. Having said that, this does not absolve the error ET committed with respect to reporting facts in the article. A simple internet search with keywords, such as patent, trademark, and intellectual property, results in references sufficient enough to develop a basic understanding regarding various forms IP, provided the articles are read carefully.

So what is a difference between a patent and a trademark? A patent is a set of exclusive rights granted by a state (national government) to an inventor or their assignee for a limited period of time in exchange for a public disclosure of an invention. On the other hand, a trademark is a set of exclusive rights a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities. A trademark can be a logo (e.g. Coca Cola logo), a Word, a Phrase (e.g. Nike: “Just do it”), or even a sound.

Accordingly, a patent is a monopolistic right provided to creator of an invention (any new useful product, or process); an incentive to inventing. Whereas, trademark is a consumer protection instrument that prevents consumer deception.

Simple, isn?t it? It is indeed simple. Wish the author of the article had shown some insight and resourcefulness in reporting a pretty interesting piece of news, rather than fabricating the report based on obscured pre-conceived notions.

Full post as published by India Law & Tech on January 18, 2011 (boomark / email).