The Difference Between Trade Mark And Patent In The UK Explained

When you’ve had a great idea for your business or product, the last thing you want is someone to steal it from you – or beat you to its release. This is where trade marks and patents come into play. 

Although they cover different areas (which we’ll get into below) patents and trade marks share a common goal: to protect your ideas and ensure that no one else uses it without express permission. That means that while they’re active, another company cannot come in to make money off your ideas. 

In theory, trade marks and patents are brilliant assets for your business. But there are a lot of exceptions to what can and cannot be protected, so they might not always be the best use of your time and resources. 

In this guide, we’ll go through the difference between trade mark and patent in the UK, what you can protect, what happens if someone violates your trade mark or patent and finally how to apply for one if it’s the right move for your business. 

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What are trade marks?

First, let’s start with trade marks, which give you legal ownership of an element of your business, such as your name or logo. Trade marks can be quite varied, covering all manner of elements such as: 

• A shape (such as the Coca-Cola bottle);
• A colour, or shape (or combination of, like Lidl’s yellow circle on a blue background); 
• A position (like where the Nike tick is on their trainers);
• A pattern;
• A sound (such as the ‘Ba dad da da, I’m Lovin’ It’ McDonalds Jingle);
• A motion (Such as Microsoft’s Windows logo);
• Any kind of multimedia item;
• A hologram;
• And more.

With trade marks, you can have pretty much free reign over this as long as it’s unique and cannot be confused for another, already registered trademark, or isn’t a descriptive name. So, for example, you couldn’t trade mark ‘Tresco’, as that’s too similar to ‘Tesco’. Similarly, you couldn’t trade mark ‘Discount grocery store’, as that would be too descriptive. 

In addition, trade marks cannot: 

• Be offensive, i.e. contain swear words or sexual images;
• Be misleading, i.e. use words like ‘organic’ or ‘local’;
• Be too common and non-distinctive, like “the best in town”;
• Use of official emblems, hallmarks or national flags.

There are some exceptions here, for example, you could have permission to use a national flag by a government body. But these cases are pretty rare, so we’d avoid this list if you want to get your patent approved. 

What are patents? 

Like trade marks, patents allow you to legally own an idea. However, patents only apply to the ownership of inventions, provided that they meet the following requirements: 

• The invention is new and hasn’t been made public before you filed for your patent.
• The invention has an ‘inventive step’ that is not obvious to someone with good knowledge and experience of your subject, i.e., it can’t be created by anyone. 
• The invention has to be made or used in some kind of industry (if it’s something you plan to sell, or use for your business, then this point is cleared). 

Generally speaking, patents are applied to physical inventions – not discoveries, ideas and theories. Other restrictions include: 

• Mathematical methods;
• Plant variety;
• Any literary, dramatic or artistic work;
• A method for performing a mental act, playing a game or doing business;
• The presentation of information or a computer program;
• A treatment method for humans or animals, whether by surgery, therapy or diagnosis;
• Software that has a ‘non-technical’ purpose.

 However, there is an exemption for inventions like new industrial processes or methods of industrial operation, which will hit the last requirement point. 

The difference between trade mark and patent 

The most considerable difference between trade mark and patent is the type of asset they protect. Trade marks protect names, or elements of a brand or business like logos, phrases or designs. In contrast, patents are for the protection of inventions only. 

There are also differences between how long they protect your business, how much they cost, and what happens if someone uses your protected idea. We’ll cover all of these in detail below. 

How long do trade marks and patents last? 

Trade marks last for 10 years when registered, but can be renewed an unlimited number of times after this date. Every time you want to renew, you must pay a fixed amount of £200 per class of goods or services your trademark is in, plus an extra £50 per additional class. 

However, if you’re not actively using your trademark, then someone else can apply to get it removed from the register. So, for example, if you registered a business name, and then stopped trading under that name, someone could file to get that particular name removed from the register and make it free to use again. 

Patents, on the other hand, last for 5 years once registered. Once this initial period is up, you can renew it every year for up to 20 years. 

The renewal fees for patents vary, going up in incremental amounts depending on what year you are renewing your patent in. For example, the first renewal will cost you £70. Your 10th year would be £170. And the final 20th year would be a whopping £610 to renew. 

A late fee of £24 also applies if you don’t renew your patent on time. If 6 months have gone by without renewing your patent, you will be given a 13-month window where it’s possible to ‘restore’ it, provided you give a good reason why you missed the deadline. After this period, your patent will no longer stand. 

Do trade marks and patents work in different countries? 

Patents and trade marks only apply in the country you register them in. If you’re looking to register a trade mark or patent outside the UK, you will need to look at that country’s individual requirements and restrictions. 

For example, in the USA, you can file for different types of patents unavailable in the UK. These include design patents for any new, original and ornamental design for manufacture, as well as plant patents, which cover anyone who invents or discovers and asexually reproduces a distinct or new variety of plants. 

How do I apply for a patent or trade mark? 

Before applying for a trade mark or patent, we’d recommend double-checking all of the requirements to make sure that your idea sits within them. It might also be worth chatting to your legal advisor for help, or even with your accountant to help you manage the money side of the application. 

You can register for a trade mark through the Gov.uk website, or via post. This involves a short, simple application where you provide details of the trade mark that you want to register, as well as your business (or personal!) details, and the type of goods or services you want to use your trade mark for. 

This process will cost around £170, and take around 3 to 4 months to be approved. 

On the other hand, applying for a patent is a lot more complicated and time-consuming, with the entire process taking around 4 years to complete.  

You can either choose to apply for one yourself with the UK Intellectual Property Office, or delegate this task to a patent agent or legal professional instead. It’s like registering a business – you can either jump through the hoops yourself or leave it in the capable hands of a company formation agent. 

Inside your patent application, your will include a detailed description of your patent, including any relevant drawings and diagrams, as well as your personal information. Once you have sent your application, you’ll be given a filing date and a receipt. 

Once you have a filing date, you can start using or selling your invention before your patent comes in, as you have an official record of a patent application, which will prevent anyone from also filing for the same patent. 

A year later, you will be asked to submit more detail to your patent application, including: 

• Claims that define what protection you need;
• An abstract giving a brief summary of the invention; 
• A request for a search with a fee, which the UK Intellectual Property Office will use to search for any similar inventions and create a report of their findings. 

18 months after your filing date, your patent will be automatically published and made publicly available. However, this does not mean that your patent has been granted yet. We did warn you that this was a long process. 

After the publication, you’ll need to pay another fee within 6 months to request an examination. If you’re familiar with PhD’s, this step is like defending your thesis so you can finally become a doctor. Basically, the UK Intellectual Property Office might write to you with reasons why the invention might not be classed as new or might be seen as obvious. Then, you will be given a time limit to respond and persuade them why your invention deserves a patent. 

Once the UK Intellectual Office agrees that your invention is new and inventive, your patent will be granted at long last. 

What happens if someone is using my patent or trade mark? 

So, what happens if you have a registered trade mark or patent, and you discover that someone is using them without your permission? 

The simple answer is that you can claim against anyone that uses your property. The long and boring answer is that you have to follow a set of procedures that are slightly different depending on whether it’s a trade mark or patent. 

If you find that someone has used your trade mark, it’s your responsibility to make sure that no one is using your trade mark – which means that the first step is to send cease and desist letters. These letters (made by your legal counsel), basically tell the other party they are using a trade mark and need to stop. In most cases, the use is accidental and will stop as soon as they get a letter. 

If they don’t stop using your trade mark, you will be allowed to start an intellectual property mediation process. This is where a third party steps in, settling the disagreement with solutions like:

• A co-existence agreement, where you both can use a trade mark but in different markets that do not compete, so no harm is done to either business. 
• A licensing agreement, where they continue to use your trade mark but pay you a licensing fee for its use.

If no settlement can be reached, then you will be able to file for a court order to take compensation for damages or loss of business. 

If you own a patent, you can skip straight to applying for an injunction and claim back any compensation from the other party. This is done through High Court, the Patents County Court or the UK Intellectual Property Office. However, there’s one little caveat here. You can’t file an injunction until your patent is approved. So if you’re still waiting, you must let the other party continue to use your invention until your patent is approved. Then you can file, and backdate any compensation from the date your application was published.

Are trade marks and patents worth it? 

Trade marks and patents can provide a good level of protection for your idea or invention if you think that others may use it to profit from your good work. However, there’s no denying that they do come at a cost to your business, both through registration and renewal fees. If you don’t think your idea is in danger, this money may be best spent elsewhere. 

Even if you’re planning on applying for a patent or a trade mark, we’d recommend that you keep your inventions or ideas confidential for now. This will stop anyone from seeing your idea and swopping in to take it up before the paperwork goes through – or even stop them from registering the idea as their own in the worst-case scenario. 

Whether you choose to use trade marks or patents in your business or not, we’ll be on hand to give you the latest business advice, news and tips to grow your company.