Patent or Trademark? What Foreign Applicants Actually Need

The difference in one paragraph each

A patent protects an invention — how something works, what it is made of, or how it is made. It gives you the right to stop others making, using or selling that invention in the United States for a limited period. It requires the invention to be new, useful and non-obvious, and it requires you to publish how it works in exchange for the monopoly.

A trademark protects the name, logo or other sign your goods and services are sold under. It gives you the right to stop others using a confusingly similar sign for related goods. It does not care whether your product is innovative. It cares whether customers use your sign to identify you as the source. It can last indefinitely, provided you keep using it and keep maintaining the registration.

Put crudely: the patent protects the machine, the trademark protects the badge on the front of it.

Which one you probably need

A large share of the people who arrive asking about a patent are describing something a patent does not cover. Two questions usually settle it.

What exactly are you afraid someone will copy? If the answer is your name, your logo, your brand, or the way customers recognise you — that is a trademark. If the answer is the underlying technology, the mechanism, the formulation, or the process — that may be a patent.

Could a competitor damage you while making an obviously different product? If yes, and the damage comes from customers confusing them with you, your problem is a trademark problem no patent will solve.

Some worked examples, since abstractions are unhelpful here:

• A new drink recipe sold under a brand name. The formulation might be patentable if genuinely novel — but the name is what customers buy, and the trademark is what stops a competitor selling a similar drink under a confusingly similar name. For most drinks businesses the trademark is the asset.
• A software application. Software patents in the United States are possible but difficult, expensive, and frequently not the best use of the money for a young company. The app’s name and mark are protectable straightforwardly.
• A clothing line. Almost always trademark, sometimes design protection. Very rarely patent.
• A mechanical device with a genuinely new mechanism. This is the patent case — and you will still want the trademark for the name you sell it under.

None of this makes patents unimportant. It makes the category question worth thirty minutes before you spend on the wrong instrument.

Two different US representation rules

If you are domiciled outside the United States, both areas now require US representation — but not the same representation, and the difference is not cosmetic.

• Trademarks, since 3 August 2019: you must be represented by an attorney licensed to practise law in the United States and in good standing. Any US state licence qualifies. No specialist registration is needed. Full detail here.
• Patents, since 20 July 2026: you must be represented by a registered US patent practitioner — a separate USPTO registration requiring a qualifying technical or scientific background and its own examination. Full detail here.

The practical consequence: the pool of people who may lawfully handle your patent is far smaller than the pool who may handle your trademark, and a firm that is properly equipped for one is not automatically equipped for the other. Ask which of their people sits on the patent register, by name, and verify it on the USPTO’s public roster.

Our own position, stated plainly: we act as attorney of record on trademark matters and do that work ourselves. Patent prosecution is handled by the registered US patent practitioner we work with.

Cost and time are not comparable

People often ask which is cheaper as though the two were alternatives at similar prices. They are not remotely similar.

A US trademark application is a defined piece of work with a predictable shape, which is why it can sensibly be quoted flat. A US patent application is a technical document drafted by a specialist, followed by an examination process that commonly runs for years and involves several rounds of argument. The order-of-magnitude difference in cost is real, and so is the difference in how long you wait.

There is also a timing asymmetry that catches people out. Patents punish disclosure. Publishing, demonstrating or selling your invention before filing can destroy your ability to patent it in much of the world. If there is any chance you have a patentable invention, take advice before you launch, not after. Trademarks reward use — using the mark builds rights rather than destroying them, and in the United States use is central to the whole system.

So the sequencing advice differs. On patents: file before you talk. On trademarks: file before you scale, and preferably before you have printed anything.

The two others people mean: copyright and designs

Two more categories account for most of the remaining confusion.

Copyright protects original creative work — writing, images, music, code — automatically on creation. In the United States, registration is not required for copyright to exist, but it is required before you can bring an infringement action, and it unlocks remedies that are otherwise unavailable. If what you want to protect is content rather than a brand or an invention, copyright is your answer.

Design protection covers how a product looks rather than how it works. In the United States this is a design patent, which sits on the patent side and is examined by the Patent Office. For products whose value is substantially in their appearance — furniture, consumer goods, packaging shapes — it is often the right and overlooked instrument.

When you genuinely need both

Plenty of businesses do, and the order usually matters more than the choice.

A hardware company with a real invention typically needs the patent filed first, because the deadline is unforgiving and disclosure is fatal, and the trademark shortly after, because the brand only becomes valuable once the product ships. A consumer brand with a modest technical component usually needs the trademark first and can consider design protection alongside.

The mistake to avoid is spending your entire budget on the wrong one. If the money will only stretch to one protection this year, work out which one your competitor could actually hurt you with — and protect that.