Do I need a patent, a trademark or a copyright?

Patents, trademarks, and copyrights are categories of intellectual property rights, each with its own form of protection:

Patents protect the way a device works (a utility patent would protect for example the mechanism by which your car brakes operate) or the appearance of a useful object (a design patent would protect for example the shape of a Coca-Cola bottle).  Patents are protected through a patent grant from the government, as opposed to trademarks and copyrights which, for the most part, are protected to an extent without the absolute need for a government registration.  Patents confer a negative right, which allows a patent holder to prevent others from making, using, offering for sale, or importing an invention, but does not confer the rights to make or use an invention on the patent holder.

A trademark or service mark protects the association of a mark identifying the source of the good(s) or service(s).  Trademarks occur in a variety of forms, from traditional trademarks such as brand names or designs to non-traditional trademarks such as colors or shapes.  Actual product configurations can be protected as trade dress if the features are non-functional and have come to identify the source of the good.  Trade dress protection can overlap with design patent protection.  Common law trademark protection typically arises from use of a trademark.  However, obtaining a Federal trademark registration serves to perfect the protection and provides a registrant with nationwide constructive priority of use.

A copyright protects an artistic expression of an idea.  Copyright generally means what the name implies–it protects against copying.  For example, a copyright in a photograph of a mountain protects that specific photograph of the mountain.  Copyright does not protect against another going to the exact spot the photograph was taken and trying to take a similar photograph.  Thus copyright protects the individual artistic expression embodied in the first photograph, but not the idea of taking a photograph of the mountain.  A copyright springs into existence whenever copyrightable material is affixed to a tangible medium of expression (for example, when a digital photograph is saved or when a new audio tune is recorded).  However, a copyright registration provides the registrant with the ability to choose statutory damages in lieu of actual damages (which can be difficult and expensive to prove) and with an easier opportunity to collect attorneys fees in the event of a lawsuit.