I am often asked by clients if they should be investing in patents, copyrights or trademarks when selling products online including through sites like Amazon®.
Sometimes the answer is all three, but in some cases protection is not available under all three.
What do patents protect, and how does Amazon treat patents?
Patents protect a new or improved product, material or machine. To qualify for a patent an invention must be “new” based on a worldwide publication search, not just based on what is being sold in the marketplace. We recommend a search to determine if your invention is new before investing the patent process. If the search shows that the invention is patentable, then we recommend protection with patent rights if the business plan shows that exclusive rights will be valuable for an extended period of time. There are products that are not expected to be popular for more than a year or two, and products where the sales volume is too low, or the market is too small to justify an investment in a patent. Other products have a potential to disrupt multi-million or billion dollar markets, and investment in a good patent strategy is a wise business decision. Our goal is to help you make a good business decision based on the facts and the law. Even though patents can be a good investment, our experience is that Amazon will not take down infringing products based on patents until there is a court order. Patents can be very valuable in a business, but they are not a quick fix for infringers online.
How does Amazon treat trademarks and copyrights?
Copyrights and Trademarks, on the other hand, can be used to stop infringers quickly on Amazon and other sites in many cases. When clients report to Amazon that a competitor is using t
heir federally registered trademark, or has copied a picture or other content that is copyrighted, Amazon is usually willing to shut down the infringing competitor very quickly.
What is the difference between trademark and copyright?
Trademarks protect a unique brand. Copyrights protect an artist’s or author’s creative expression embodied in their work. Trademarks include logos and names or short phrases that help buyers know who they are buying from. Trademarks must be used to identify WHO is offering a product, NOT WHAT is the product. Copyrights, however, cannot be used to protect short phrases like those that may be used as taglines, slogans, or brand names. Copyrights can be used to protect your original photos of your product, your description of the products you are selling (the more creative the better), books, paintings, sculptures, videos and advertising material you create to help sell your product. One large difference between copyright and trademark is the use of the ® and ©. ® can only be used when you have a federally registered trademark. If your trademark is not federally registered (or even if it is federally registered) you can use “TM” to indicate that you claim rights in your brand. Conversely, no filing or registration is required to use the copyright notice with ©. We guide clients on how to protect their copyrighted material, and how to protect their brands when selling products on Amazon.
Wayne Carroll
Registered Patent Attorney