Spec notes
- The USPTO grants patents and registers trademarks; the U.S. Copyright Office at the Library of Congress registers copyrights.
- A provisional patent application lasts 12 months from filing, the period cannot be extended, and it lets you use the “Patent Pending” notice during that time.
- Federal trademark registration gives a legal presumption that you own the mark and the right to use the ® symbol.
Founders often use “IP” as one word for everything a startup owns that isn’t cash or furniture. The law splits it into different tools, each covering something different, each obtained a different way. The U.S. Patent and Trademark Office explains the basics on its own site, and the distinctions matter as soon as you choose a name or show your product to anyone.
Three tools, three jobs
| Trademark | Patent | Copyright | |
|---|---|---|---|
| Protects | A word, phrase, design or combination that identifies the source of your goods or services | Technical inventions that are new, unique and usable in some industry | Original creative works in a tangible medium, including software code |
| Example (USPTO) | A brand name for soft drinks | A new type of hybrid engine | Song lyrics |
| Registered by | USPTO | USPTO (grants patents) | U.S. Copyright Office, Library of Congress |
| What federal protection does | Helps prevent others from registering or using a confusingly similar mark for related goods or services | Stops others from making, using or selling the invention without consent | Protects the exclusive right to reproduce, distribute and display the work |
For a software startup, all three can apply: the product name is a trademark question, a new technical method may be a patent question, and the code itself is protected by copyright.
Trademarks: your name and logo
The USPTO distinguishes a brand, a marketing concept about how people feel about your product, from a trademark, the legal protection for the name, logo or slogan that identifies it. It notes that it is your choice whether to register, but that without protection others could use a name so similar to yours that customers can’t tell the difference.
Benefits of federal registration
- Your mark is listed in the USPTO’s public database, giving notice to anyone searching for similar marks.
- A legal presumption that you own the mark and have the right to use it.
- The right to bring a lawsuit about the mark in federal court.
- The right to use the ® symbol.
- A basis for filing in other countries, and the option to record the registration with U.S. Customs and Border Protection to stop infringing imports.
A DBA is not a trademark
Filing a Texas assumed name certificate makes your business name a public record, but chapter 71 of the Business and Commerce Code says it does not give a right to use the name in violation of unfair competition or similar laws. Search the USPTO trademark database before you settle on a name. See Assumed Names (DBAs) in Texas: When and Where to File.
Tip: Search before you spend: check the USPTO database, the Texas Secretary of State’s records and web domains for your proposed name before you order signs or a logo.
Patents: your invention
A patent protects an invention from being made, used or sold by others without the inventor’s consent. Patent applications are technical legal documents; the USPTO maintains a roster of registered patent attorneys and agents who can prepare them.
The provisional application
The USPTO has offered provisional patent applications since 1995 as a lower-cost first patent filing. According to the USPTO:
- A provisional application does not require formal patent claims, an oath or declaration, or a prior art statement.
- It gets a filing date only if it contains a written description of the invention that meets the patent law’s requirements; drawings needed to understand it should be included.
- It lasts 12 months from filing, and that period cannot be extended.
- During those 12 months you may use the “Patent Pending” notice.
- It is abandoned automatically after 12 months; to keep the earlier filing date, you must file a nonprovisional application claiming its benefit within that time.
A provisional is useful when you need to show an invention to investors or partners soon but are not ready for a full application. It is not a shortcut: if the description is thin, the filing date may not protect what you later claim.
Copyright: your code and content
Copyright protects original works in a tangible form, including software code, photographs and written material. The USPTO points to the U.S. Copyright Office for registration. For startups, the practical issue is often ownership: make sure contractors and employees who write code or create content have agreed in writing that the company owns it.
Federal funding and IP
If your research is funded by an SBIR or STTR award, the award terms address intellectual property. Read them before you accept. See SBA Loans and SBIR/STTR Awards: Federal Funding Options for Austin Startups.
The bottom line
Register the name customers will know you by as a trademark, consider a provisional patent before you disclose a new invention and get written agreements so the company owns its code. A Texas DBA does none of this; it only puts your business name on record. For hiring the people who will build it, see Hiring Your First Employee in Texas: The Federal and State Checklist.