Trade secrets vs. other forms of IP

  Trademark Copyright Patent Trade secret
Source of law Federal & state Federal Federal Generally state
Rights upon Use in commerce OWOA fixed in tangible medium Registration While remains TS w/ reasonable security meas.
Disclosure None (though applications and registrations are public) None (though registrations are listed in CR Office database) Prior art, drawings, claims, etc., published. General public disclosure can lead to loss of trade secret
Term As long as used in commerce; registrations for 10 years Varies, LOA + 70 years 20 years for utility patent As long as still a TS
Registration No/benefits No/benefits Required No
Functional Defeats TM Defeats CR A requirement TS covers information, which includes functional matter
Delay in filing Can still register Can still register May lose (statutory bar) N/A
Independent creation No defense if LOC Is absolute defense US AIA : “first inventor to file” Independent parties can have TS
Copying May lead to presumption or inference of LOC Is an element of direct copyright infringement Subsequent inventors may write “blocking” patents Unauthorized acquisition is prohibited, but reverse engineering may be ok.