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It is not uncommon to confuse a patent and a trade mark when first reading into intellectual property rights. Both patents and trade marks provide you with the exclusive right to exploit your intellectual property. However, patents protect your invention, while trade marks protect your brand. This article will help alleviate your queries by explaining the difference between patents and trade marks.

What are Patents and Trade Marks?

Patents and trade marks are intellectual property rights which you can register in New Zealand.

Patents

A patent provides you with the exclusive right to exploit your invention. This allows you to stop others from:

  • making;
  • selling;
  • hiring;
  • using; or 
  • importing your invention without your consent. 

Trade Marks

On the other hand, a trade mark protects your brand and differentiates your goods and services from your competitors. A trade mark can be a:

  • sign;
  • logo;
  • word;
  • smell;
  • sound;
  • movement;
  • colour; or 
  • any combination of these. 

Once you have registered a trade mark, it provides you with the exclusive right to that mark. It also gives you the exclusive right to authorise others to use the mark.

The Differences Between Patents and Trade Marks

The fundamental difference between patents and trade marks is that: 

  1. patents protect your invention; and  
  2. trade marks protect your brand.  

There are also other distinctions, some of which are outlined below:

1. The Registration Process

You must file both trade marks and patents with the Intellectual Property Office of New Zealand (IPONZ). This is the New Zealand government agency in charge of granting and registering intellectual property rights in New Zealand. However, the process of registering a trade mark is different from the process of obtaining a granted patent for an invention. 

To file a trade mark application, it is imperative to include: 

  • what the trade mark is;
  • what goods or services would you like to use the trade mark for; and
  • who owns the trade mark. 

However, to file a patent application much more information is required, including: 

  • a patent specification which outlines the invention including having a title, background, field of invention, summary of invention, detailed description, claims and drawings; 
  • who owns the patent; and 
  • who invented the patent. 

In both instances, once the intellectual property right is filed, IP Australia performs an examination process to determine if the trademark application or patent application meets various legal requirements.

2. The Duration of Protection

In New Zealand, a registered trade mark lasts for ten years. However, you can renew your trade mark indefinitely if you pay the renewal fee. The renewal fee is due every ten years from the anniversary of the filing date of the trade mark. 

A granted patent lasts for twenty years in New Zealand. Renewal fees must be paid annually from the fourth anniversary of the filing date of the patent to keep the patent alive. If the renewal fee is not paid, the patent will lapse.

3. What if I Do Not Register My Intellectual Property in New Zealand? 

In New Zealand, a trade mark can exist in the public domain without being registered with the Intellectual Property Office of New Zealand (IPONZ). Trade marks that are not registered provide limited protection. In the event that an unregistered trade mark is infringed, it is usually recommended to file a trade mark application with IPONZ first to register said trade mark in order to enforce the trade mark owner’s rights.

On the other hand, inventions which have not been filed in patent applications with IPONZ, but that have been exposed to the public risk losing any potential for patent protection. In particular, the general rule is that if an invention is publicly disclosed before filing of a patent application, it is understood by the public that the owner of the invention has not protected their intellectual property. As sometimes this occurs without means, IPONZ grants a twelve month grace period in certain instances where there has been disclosure.

If you have inadvertently disclosed your invention, you may be able to seek patent protection if that disclosure was made no later than twelve months from the day a complete patent application is filed with IPONZ. 

Key Takeaways

The difference between a trade mark and a patent lies in what each intellectual property right protects. In particular, a trade mark protects a brand and a patent protects an invention. If you have further questions about registering your trade mark or patent, or how to best protect your IP in New Zealand, get in touch with LegalVision’s IP Attorneys on 0800 005 570 or fill out the form on this page.

FAQs

What is a trade mark?

A trade mark protects your brand and differentiates your goods and services from your competitors. It can be, for example, a sign or logo.

What is a patent?

A patent provides you with the exclusive right to use your invention. This allows you to stop others from using it or copying it.

How long to trade marks and patents last?

A registered trade mark lasts for ten years. However, you can renew your trade mark indefinitely if you pay the renewal fee.
A granted patent lasts for twenty years in New Zealand. Renewal fees must be paid annually from the fourth anniversary of the filing date of the patent to maintain the patent.

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