Article by Adhip Ray, consultant at PatentPC.
A fast growth tech startup often faces several legal challenges. They get into the cross-hairs of larger competitors, who are often very litigious, they face challenges from the industry that they wish to revolutionize, which is why they incorporate their business so as to limit any sort of personal liability, but most of all, they face the impending danger of having their trademarks and patents stolen by competitors.
Trademark theft happens when a person or a competing brand steals your goodwill and branding and uses it for their own products or services. Patent theft happens when someone gets wind of your invention and starts to use it for their own business via their products or services.
Needless to say, often in both these cases, there is very little an entrepreneur can do, once the theft happens, which is why, protecting them both legally is very important.
But, if you were suppose short of cash and could protect only one, which one should it be? While we, as an intellectual property law firm, may have our own views on the matter, we wanted a fresh and diverse point of view on this debate – patent vs trademark.
And, that’s why we invited entrepreneurs and business owners to share what would their startups prioritize – trademark or patent?
table of content
Trademark is the First Priority when it comes to Patent vs Trademark because Trademark is Less Expensive and Easier to Get
Trademark Lasts Longer, So I’d Go with It when it Comes to Trademark vs Patent
While Choosing Patent vs Trademark, Your Own Exact Position Matters the Most
Trademark is Your Startup’s Identity, so It Comes First in a Patent vs Trademark Debate!
Trademark Ties into Too Many Areas of a Business, so It’s the First Thing You Have to Protect
Patents are More Important for Early Stage Tech Companies Who Are Looking for Funding
#1. Trademark is the First Priority when it comes to Patent vs Trademark because Trademark is Less Expensive and Easier to Get
Ryan Fyfe, COO at Insightful, Inc. shares – “Startups typically prioritize trademark protection over patent protection. Trademark protection is less expensive and faster to obtain than patent protection, and trademarks can be more easily registered in foreign countries.
Moreover, a trademark can be more valuable to a startup than a patent because it identifies the source of the goods or services and can help build customer loyalty. A patent, on the other hand, protects an invention or process but does not identify the source of the goods or services.”
#2. Trademark Lasts Longer, So I’d Go with It when it Comes to Trademark vs Patent
Mila Garcia, co-founder of iPaydayLoans shares –
“I value brand trademark more because it holds value for much longer, as while a patent has a limited lifespan of about 20 years, a trademark doesn’t expire and can last forever, which means that I can keep on building tremendous brand loyalty and recognition over time, and if successful, I will be able to turn it into a property asset that I can even sell or license, much like real estate.”
“While both trademarks and patents can play an important role in the success of a startup, we often find that it is actually the trademark that ends up being the most valuable and prioritized. One of the reasons for this is that a patent has a specific function and a specified lifespan.
A trademark, on the other hand, can protect a brand that offers many different types of products and services.
One anecdote that comes to mind is that a peer in the recruiting industry started their business after taking out a trademark and a patent. Their patent has since expired, and their company has also pivoted to new types of offerings under its healthy and profitable brand—which is still protected by a trademark.”
#3. While Choosing Patent vs Trademark, Your Own Exact Position Matters the Most
Trevor Larson, the CEO and Founder of Nectar shares –
“There is a fundamental question you need to answer if you want to know what makes more sense to protect and that is “how integral is a particular product feature to my market position?” If the answer is “very,” then you would likely want to secure a patent. This helps to ensure that no one can copy your invention and produce a knock-off product.
On the other hand, if the answer is “not very,” then trademark protection may be more important. This is because it helps you to protect the name or image of your product so that consumers can easily identify it as being yours.
At the end of the day, it depends on what you’re selling. If you are in a market characterized by many similar products, where companies compete on brand, then trademark may be more important. If you are in a market where products are unique and there is little direct competition, then patents may be more important.”
What Needs Your Immediate Protection – Your Invention or Your Brand?
“It really depends on what you are trying to protect. If you have a really great product, then you might want to focus on getting a patent. If you have a great brand, then you might want to focus on trademark protection. Ultimately, it depends on what is most important to your business.
My sense is that it makes more sense to try and protect brand because it is more valuable in the long run, but that ultimately it is up to the founder to decide what makes the most sense for their business.
There are plenty of instances of companies who have let their brand languish while they focused on getting patents, only to find that someone else has come up with a similar product and is taking all of their market share.”
“Startups have a lot to think about when it comes to intellectual property. Should they prioritize trademark or patent protection?
The answer may depend on the product or service they offer. For example, if a startup is selling a unique new product, a patent may be more important than a trademark. On the other hand, if the startup is selling a service that can be easily imitated, a trademark may be more important.
Ultimately, it’s up to the startup to decide what type of intellectual property protection is best for their business. However, it’s worth noting that both patents and trademarks can be valuable assets for startups.”
What is Your Startup All About?
“If your startup is based around a unique service, proprietary product, or new technology, then prioritize the patent. Securing the unique functions of your products against copycats is essential to startups that thrive on the cutting edge.
If your startup isn’t reinventing the wheel, but instead focused on branding, artistic expression, or trade secrets, then prioritize a trademark. Importantly, this includes software programming, art, music, and slogans that you don’t want to lose to a competitor.
Figuring out which one you are should be part of your original business plan, and, if you can, allocate a part of your budget towards hiring an intellectual property lawyer to help.”
#4. Trademark is Your Startup’s Identity, so It Comes First in a Patent vs Trademark Debate!
“Trademarks are like identity protection for startups. A brand’s logo is a vital marketing tool. Logos that are easily recognizable hold great sway over consumer purchasing decisions.
And coming up with one that defines and distinguishes your brand typically takes a significant amount of time and effort.
You can go through revision after revision to get it right.
So it’s imperative to trademark your logo to keep other people from using your specific logo or one that may be confusingly similar. Doing so gives you not only legal protection but also lets consumers—and your competition—know you own that mark. “
#5. Trademark Ties into Too Many Areas of a Business, so It’s the First Thing You Have to Protect
“When I’ve been in situations where my startup was going through protection for our trademark or patents, the number one choice in priority was always for our trademark.
We would go through all the steps possible to register it onto the USPTO (United States Patent and Trademark Office), including registering our social media platform handles.
This is extremely important because unlike a patent, your trademark represents your company’s image, remembrance, and uniqueness. If you were to lose your trademark, or go to court for it, it would be very expensive, time-consuming, the monetary cost is excruciating, the attention or bad publicity can be disastrous, and you could be forced to rework your entire marketing strategy.
Always make sure to prioritize protection for your trademarks, however, it is also very important to protect your parents as much as possible too.”
#6. Patents are More Important for Early Stage Tech Companies Who Are Looking for Funding
David Glasser, a Startup enthusiast, Purpose dweller, Growth Director, and PRExecutive of Notta shares –
“Patenting your innovation will go a long way in helping you to secure funding. Some study shows that Venture capitalists, banks, Angel investors are far more likely to invest in technology startups that are patent pending.
Also, owning a patent plays a significant role in ensuring that larger rivals do not steal your innovation. Without a patent your innovation is at the mercy of every copycat in the business and in the end, you may not get enough reward for your innovation. And if you plan to cash out early, having a patent increases the chances that your startup will get acquired.
So regardless of how challenging it isto file for a patent, you should get it, especially if your startup has adisruptive and unique innovation.”
Jaclyn Strauss, CPA, CEO and Co-Founder of 2ndVault also shares a similar belief –
“Some people think that trademarks are enough, but patents can be extremely valuable. The challenge, however, is that it’s much more challenging to have a service-based business that has something that would be granted a patent. It’s essential to protect your opinions no matter which one you choose.
Trademarks are intellectual property that protects your brand name, logo, and other identifying factors. They’re relatively easy to obtain, and they give you the exclusive right to use your protected elements in commerce.
Getting a trademark for your company name and a trademark for a company name and company slogan is a bright idea for any start-up to consider.
Patents, on the other hand, are a bit more complicated. They protect your invention itself, rather than just the branding around it. You’ll need to file a detailed application with the US Patent and Trademark Office to get a patent.
Patents can be more expensive and time-consuming to file and obtain, but they offer a much higher level of protection.
For this reason, as a start-up founder, you should prioritize obtaining a patent over a trademark. In general, the value will likely be higher than a trademark. If someone infringes on your patent, you may be able to stop them from selling their product altogether.
So, which one should you choose? Trademarks are a great way to protect your brand, and they’re usually less expensive and time-consuming than patents. However, if you have a unique invention, it’s worth the extra effort to get a patent.
Having a patent typically provides a more valuable asset for the company compared to a trademark.”
Our take on the Patent vs Trademark Debate
We, at PatentPC would agree with this notion. If your brand name is as important as Supreme, then yes, your Trademark is more valuable than anything that you could or would invent and patent.
But, if you are a relatively unknown tech company with an invention that can’t be kept as a trade secret and one that can upend the entire industry, a patent is the way to go.
But it is still not that simple. In fact, there are a ton more considerations to factor in, such as do you have the money to defend your patent from infringement, do you even have the money to go for a patent, etc., which is why, you need to consult an intellectual property lawyer to guide you taking your exact position into mind.
That’s it. Hope you found the article insightful. If you have any thoughts let us know in the comments. If you have any questions, don’t hesitate to contact us and we will get back to you.