There are four primary types of intellectual property protection: patents, trademarks, copyrights, and trade secrets. While it is easy to get the various forms confused, perhaps none inspire more confusion and uncertainty than trademarks and trade secrets. One could be forgiven for assuming that, because they both contain the word “trade,” they must be similar or cover similar types of intellectual property assets. But trademarks and trade secrets are actually quite different, protecting radically different types of assets. In fact, trademarks and trade secrets have nothing to do with each other, as an Alabama intellectual property lawyer explains.
Trademarks: Source-Identifying Information
Trademarks protect brand names, logos, slogans, jingles, and any other information that is used to identify the source of a particular good or service and distinguish it from those of others. To function as a trademark, the mark must be capable of identifying the source of the goods and services. Generally, the more distinctive a trademark is, the more protection it will confer. There are two main forms of trademark distinctiveness:
- Inherent distinctiveness: The most distinctive types of trademarks are those that are inherently distinctive. These include fanciful marks (made-up words such as “Kodak,” “Pepsi,” and “Verizon”), arbitrary marks (words with ordinary meanings that are unrelated to the goods or services such as “Uber,” “Apple,” and “Tide”), and suggestive marks (those that are suggestive of the type of good or service being offered such as “Greyhound,” “Coppertone,” and “Netflix”).
- Acquired distinctiveness: Trademarks that are not inherently distinctive may nonetheless be distinctive if they have acquired distinctiveness or “secondary meaning” through the continued use of what was once a merely descriptive phrase, such as “General Motors,” “Bank of America,” and “Cartoon Network.”
In short, trademarks derive their value by identifying the source of a good or service — in other words, by being known by others.
Trade Secrets: Proprietary Information
A trade secret is any business information that confers a competitive advantage by virtue of being unknown by others. This can include recipes, lab notebooks, product plans and prototypes, customer lists, and manufacturing processes, among many others. The key feature of trade secrets is that they are known only internally and that the holder of the trade secrets takes active steps to keep them concealed from others. One famous example of a trade secret is the recipe for Coca-Cola, which was kept under lock and key in a vault in Atlanta for most of the company’s history. Once a trade secret becomes public, it is no longer protectable.
So, What’s the Difference?
On a philosophical level, the difference between trademarks and trade secrets largely boils down to a difference in how they derive their value. Trademarks derive their value by being known by others, while trade secrets derive their value by being unknown by others. If a trademark were withdrawn from use in commerce, it would cease to be a trademark, while a trade secret would cease to be a trade secret if it were made available to the public.
Contact an Alabama Intellectual Property Lawyer for More Information about Trademarks and Trade Secrets
Trademarks and trade secrets can both be tremendously valuable for the businesses that hold them. For more information about trademarks and trade secrets, please contact an Alabama intellectual property attorney at AdamsIP by calling 251-289-9787 or by using our online contact form.