Faced with the need to thrive in competitive markets, enterprise owners and inventors alike are increasingly aware of the importance of protecting their identity and solutions. The Intellectual Property Code (IP Code)1 protects these rights, but without a clear understanding of the distinctions between them, individuals and businesses may be vulnerable.
Read further to understand the key differences between a trademark and a patent. This will help you easily navigate through the
Trademark v. Patent: 5 Key Differences
Promoting innovation and commerce in the Philippines comes with knowing the differing concepts between trademarks and patents. Hence, the following differences are essential in ensuring the right form of protection for you:
1. As to definition
A trademark is “any distinctive word, name, symbol, emblem, sign, or device, or any combination thereof, adopted and used by a manufacturer or merchant on his goods to identify and distinguish them from those manufactured, sold, or dealt by others.”2
A patent, on the other hand, is any technical solution of a problem in any field of human activity which is new, involves an inventive step and is industrially applicable shall be patentable. It may be, or may relate to, a product, or process, or an improvement of any of the foregoing.3
2. As to the purpose of protection
The purpose of a trade or service mark is to distinguish an enterprise’s goods or services.4 It functions to indicate ownership, guarantee quality, and advertise the goods and services.5
Patent law rewards invention to stimulate innovation. In Pearl & Dean (Phil.), Inc. v. Shoemart Inc. and North EDSA Marketing, Inc., then Justice Corona listed the three-fold purpose of patent law, viz:
"First, patent law seeks to foster and reward invention; second, it promotes disclosures of inventions to stimulate further innovation and to permit the public to practice the invention once the patent expires; third, the stringent requirements for patent protection seek to ensure that ideas in the public domain remain there for the free use of the public."6
3. As to application
For a trademark to be registered, it must be distinctive, meaning that a mark should clearly identify the source of goods of an enterprise or services. Additionally, marks that are generic, deceptive, or confusingly similar to an already registered mark are excluded from registration.7 To learn more about registering your trademark, check out the 3 Easy Steps to Register Trademark in the Philippines.
To be granted a patent, it should be new, inventive, and industrially applicable.8 In contrast to trademarks, patents are granted to inventions that have not been made available to the public before the filing of the application.9
Take note that the registrability of both trademarks and patents is subject to different exclusions which can be found in Section 123 (for trademarks) and Section 22 (for patents) of the IP Code. The examination and publication of trademarks and patents also vary according to the provisions of the law.
4. As to the scope of rights
The owner of a trademark has the right to the exclusive use of the mark for one’s goods or services. This includes the right to prevent others from using the same mark for identical goods or services in the course of trade.
The provisions on patents confer to the patent holder the right to exclude all others. The patentee has an exclusive right to make, use or sell the invention, and such right belongs to the inventor, his heirs, or assigns.
5. As to infringement
Trademark infringement and patent infringement differ in terms of the standards for establishing infringement and the nature of the rights infringed.
To establish trademark infringement, the following elements must be proven: (a) the trademark being infringed is registered in the Intellectual Property Office (IPO); (b) the trademark is reproduced, counterfeited, copied, or colorably imitated by the infringer; (c) the infringing mark is used in connection with the sale, offering for sale, or advertising of any goods, business, or services; or the infringing mark is applied to labels, signs, prints, packages, wrappers, receptacles, or advertisements intended to be used upon or in connection with such goods, business, or services; (d) the use or application of the infringing mark is likely to cause confusion or mistake or to deceive purchasers or others as to the goods or services themselves or as to the source or origin of such goods or services or the identity of such business; and (e) it is without the consent of the trademark owner or the assignee thereof. Here, the right of the trademark owner to the exclusive use of the mark is infringed.
In contrast, patent infringement involves the unauthorized use, making, selling, or offering for sale or importing a patented product or a product obtained from a patented process. Here, the exclusive right of the patentee to exclude others from the making or using an invention is infringed.
Conclusion
Understanding the key differences between trademarks and patents is crucial to effectively enforce the provisions of the Intellectual Property Code. The protections that the law promises would be useless if not applied in proper situations.
Do you want to equip yourself with the right information about trademarks and patents? Consult with a trademark attorney today. You may also email your concerns to admin@pinollaw.com.
1 An Act Prescribing the Intellectual Property Code and Establishing the Intellectual Property Office, Providing for its Powers and Functions, and for other Purposes, Republic Act No. 8293, §1 (January 1, 1998) [hereinafter Intellectual Property Code of the Philippines].
2 Dermaline, Inc. v. Myra Pharmaceuticals, Inc., G.R. No. 190065, August 16, 2010.
3 Intellectual Property Code of the Philippines, §21. See also Kho v. CA, G.R. No. 115758, March 19, 2002.
4 IntellectualProperty Code, subsection 121.1, which states that a "Mark" means any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods[.]
5 Dissenting opinion of Justice Leonen in Ginebra San Miguel, Inc. v. Director of the Bureau of Trademarks, G. R. No. 196372, August 9, 2022.
6 See also Aronson vs. Quick Point Pencil Co., 440 U.S. 257, 262 [1979], citing Kewanee Oil Co. vs. Bicron Corp., 416U.S. 470 [1994], cited Amador, patents, p. 496.
7 Intellectual Property Code of the Philippines, §123.
8 Id at §27.
9 Id at §24.
