PUBLIC COUNSEL | COMMUNITY DEVELOPMENT PROJECT | TRADEMARK BASICS FOR NONPROFITS | PAGE 2
hamburgers sold inside. A nonprofit may thus use trademarks to differentiate itself from other
organizations or businesses, and to build its brand or identify specific projects as coming from that
nonprofit.
2. How is a trademark different from a patent or a copyright?
Trademarks, patents, and copyrights are all distinct intellectual property rights.
A patent is a right that can be used to prevent others from making, using or selling, offering for sale or
importing an invention covered by the claims of the patent. The invention can be an apparatus, a process,
a composition of matter or an ornamental design. For example, if a nonprofit develops a simpler, cheaper
solar cooker for use in developing countries, such cooker may be the subject of a patent.
A copyright protects any tangible form of expression by an author of an original work which includes
literary (e.g., novels, articles and other written works, including computer software), musical, dramatic,
performance, pictorial and sculptural, audiovisual, sound records, architectural, and artistic works. In
essence, copyrights provide protection for artistic expression.
In contrast, as discussed above, a trademark is any symbol, word, or design used to identify the source of
goods and services. The owner of a trademark has the exclusive right to use the trademark for the goods
or services for which it has been registered and for any other goods or services which are related thereto.
Like patents and copyrights, rights in trademark enable the trademark owner to stop another company
from doing something. Under patent law, it might be creating another version of the invented product.
Under copyright law, it might be copying a painting or charging people to watch a movie without
permission. Under trademark law, it is typically using a mark that is so similar that its use is likely to
cause consumers to be confused when buying those goods or services. “Likelihood of confusion” is the
hallmark problem that trademark law seeks to prevent.
Whether two marks are “confusingly similar” is a nuanced and fact-specific inquiry. If one person uses a
trademark in connection with car tires, and another person uses the same or similar-sounding trademark in
connection with a hair salon, then the first trademark holder may not necessarily have the right to stop the
second holder from using the mark. However, if a person uses a trademark in connection with car tires,
and another person uses the same or similar-sounding trademark in connection with the same product or
service, or even a related product or service (brake pads), then the trademark holder may be able to
prevent the infringer from using that mark. In the context of nonprofit organizations, a nonprofit may
prevent others from using its name or a similar name in connection with the same or similar services.
While each category is distinct, a product may fall into one or more categories – patent, trademark, and/or
copyright. For example, a book may be protected under copyright law, whereas the title of a series of
books or the names of the characters contained therein may be protected under trademark law.
There are several differences between these three distinct rights. For example, patents and copyrights
both expire at the end of their respective terms. A trademark, however, may continue in perpetuity if
intentionally and continually used as a trademark. Under the current U.S. law a federal trademark