Copyright, trademark or patent: which protects what you made

Bizer · 2026-10-01

Copyright protects what you created: words, photos, designs, music, software code. A trademark protects what identifies you: your business name, logo and slogan. A patent protects how something works: an invention, a process, a new design for a product. They overlap less than people think, and most small businesses need exactly one of them filed.

That one is usually the trademark.

What does copyright protect, and do you need to register?

Copyright exists the moment you fix an original work in a lasting form: the photo is taken, the blog post saved, the code written. You do not need to register to own it.

You need to register to enforce it. For US works, federal law requires a registration before you can sue for infringement. And the strongest remedies, statutory damages and attorney's fees, are generally available only if you registered before the infringement started or within three months of first publication. Register late and you can still sue, but often only for the money you can prove you lost, which for a stolen product photo may be very little.

As of September 2026, the U.S. Copyright Office charges $45 to register one work by one author online (its Single Application) and $65 for its Standard Application. The Office sent Congress a new fee schedule in July 2026 that raises fees, so check the Copyright Office's fee page on the day you file. Copyright generally lasts for the author's life plus 70 years.

What copyright does not cover: names, short phrases, slogans, ideas and methods. You cannot copyright your business name. People try.

What does a trademark protect?

The words and symbols customers use to tell you apart from competitors. You gain some trademark rights simply by using a mark in business, but only in the area where you actually trade. Federal registration with the USPTO gives you nationwide priority from your filing date and the right to use the registered symbol.

Since 18 January 2025, the USPTO's base fee for a trademark application is $350 per class of goods or services. Add $200 per class if you describe your goods or services in your own words instead of choosing from the USPTO's pre-approved list, so use the list. After registration, you file a declaration of use between the fifth and sixth anniversaries and renew every ten years. Miss a deadline and the registration is cancelled.

Registering your business name with your state is not a trademark. It reserves the name on the state's list of companies, and nothing more. Louisiana does offer a separate state trademark registration through the Secretary of State, $95 from 1 October 2026, but it only covers Louisiana.

What does a patent protect?

A new, useful and non-obvious invention, or a new ornamental design for a product. A utility patent lasts 20 years from the filing date. A design patent lasts 15 years from the date it is granted.

Patents are the expensive one. Filing fees are the small part; a patent attorney's or agent's fees for drafting and arguing with the examiner are the large part. A provisional application is the cheaper first step. Under the USPTO fee schedule in effect since 19 January 2025, it costs $325, or $130 for a small entity and $65 for a micro entity. It gives you 12 months to file the full application while you test whether the product sells.

Be careful about telling the world first. US law gives inventors a one year grace period after their own public disclosure, but many other countries give none. Showing the prototype at a trade show can end your foreign patent options that afternoon.

Which one should you pay for?

For most small businesses:

1. Register the trademark for your name if you plan to grow beyond one town, sell online, or build a brand you might one day sell. A rebrand forced by someone else's earlier registration costs far more than $350.
2. Register copyrights selectively, for the work people actually copy: product photos, a course, a book, software. Registering every blog post is not worth the fees.
3. Skip the patent unless the invention itself is the business and you can afford to enforce it. A patent you cannot pay to defend mostly tells competitors how your product works.

Recipes, formulas and customer lists are often better kept as trade secrets: never disclosed, protected by NDAs and need-to-know access, and free.

What does this cost you?

Time, mostly. A trademark application often takes the better part of a year to reach registration, and the examiner may reject it for being too descriptive or too close to an existing mark. A search before you choose the name avoids most of that. If you are still choosing one, picking a business name builds the search in.

What is uncertain

Two things. First, the copyright fees: the new schedule was before Congress as of September 2026, so the figures above may change within weeks. Second, AI. The Copyright Office's January 2025 report on copyrightability said material generated by AI without enough human creative control cannot be registered, while human selection, arrangement and editing can be. Where that line falls in a particular case is still being worked out. If your product is AI-assisted, keep a record of what you did by hand.

This is general information, not legal advice. For anything you plan to enforce, an hour with an intellectual property attorney is money well spent.