Japanese Patent Law vs. Copyright and Trademark: What are the Key Distinctions for Businesses?

Japanese Attorney at Law - Bengoshi L.L.

05 Jun 2025 • 8 min read

For businesses operating in or engaging with Japan, a clear understanding of its intellectual property (IP) landscape is crucial. Patents, copyrights, and trademarks are fundamental IP rights, each offering a distinct form of protection. Misunderstanding these distinctions can lead to inadequate protection of valuable assets or, conversely, unintentional infringement of others' rights. This article clarifies the core differences between these three key IP rights under Japanese law, highlighting aspects particularly relevant for businesses.

1. Subject Matter of Protection: What Exactly is Being Protected?

The first and most fundamental distinction lies in what each right aims to protect.

Patents: Protecting Technical Ideas and Inventions

Japanese patent law protects "inventions," which are defined as advanced creations of technical ideas utilizing the laws of nature. The focus is on the underlying technical concept, the solution to a technical problem, or the functional aspects of a product or process.

What can be patented? Examples include new machines, manufacturing processes, chemical compounds, pharmaceuticals, and even certain types of software that embody a technical creation. The key is that the invention must be a technical idea.
What is generally not patented? Discoveries of natural laws, scientific theories themselves (as opposed to their technical application), purely mental processes, business methods lacking a technical aspect, and artistic creations (which fall under copyright) are typically not patentable subject matter.

The emphasis is on the "idea" itself, provided it's technical and meets other patentability criteria like novelty and inventive step.

Copyrights: Protecting Original Expressions

Copyright in Japan protects the original expression of thoughts or feelings that fall within the literary, scientific, artistic, or musical domain. Unlike patents, copyright does not protect the underlying ideas, concepts, systems, or facts themselves, but rather the specific way in
which they are expressed.

What is protected by copyright? This includes a wide array of works such as novels, articles, musical compositions, paintings, photographs, architectural designs, maps, technical drawings, films, and computer programs (which are protected as literary works). The work must exhibit originality, meaning it reflects the author's personality and is not a mere copy.
Distinction from Ownership of Physical Object: It's important to distinguish copyright from the ownership of the physical object embodying the work. For instance, owning a calligraphy scroll does not automatically grant the owner the copyright to reproduce or publicly display the calligraphic work itself. This principle was affirmed in the Yan Zhenqing Calligraphy Scroll Case (Supreme Court, January 20, 1984), where the Supreme Court of Japan held that ownership of the original artwork (a tangible object) is distinct from the copyright (an intangible right) in the artistic work itself. The owner of the physical scroll could not prevent reproductions made from photographs taken with the previous owner's permission, as the copyright had long expired.

The core of copyright protection is the author's unique expression.

Trademarks: Protecting Brands and Source Identifiers

Trademark law in Japan protects "marks" used to distinguish the goods or services of one business from those of others. These marks function as indicators of origin and quality, embodying the goodwill and reputation a business has built.

What can be a trademark? This includes names, logos, symbols, characters, three-dimensional shapes, colors, sounds, and potentially even more novel types of marks, as long as they are distinctive and capable of identifying the source of goods or services.
Function of Trademarks: The primary purpose is to prevent consumer confusion by ensuring that marks uniquely identify a particular business or product line. They protect the investment made in building a brand's reputation.

The essence of trademark protection is the distinctiveness of the mark in relation to specific goods or services, safeguarding business identity and consumer trust.

2. How Rights Arise: The Path to Protection

The manner in which these IP rights come into existence differs significantly.

Patents & Trademarks: The Registration Principle

In Japan, both patent rights and trademark rights are fundamentally based on a "registration principle." This means that to obtain these rights and enforce them, a formal application must be filed with the Japan Patent Office (JPO), undergo substantive examination, and ultimately be registered.

Patents: An invention, even if novel and inventive, does not automatically receive patent protection upon its creation. The inventor (or their successor in title) must file a patent application detailing the invention. The JPO then examines the application for compliance with various requirements, including patentable subject matter, novelty, inventive step, and industrial applicability. If the JPO finds that all requirements are met, the patent is granted and registered. This process can be lengthy and involve significant costs.
Trademarks: Similarly, trademark rights are secured through application to the JPO and subsequent registration. The JPO examines the mark for distinctiveness and ensures it does not conflict with prior existing marks or other unregistrable categories. Only upon registration does the owner acquire exclusive rights to use the trademark for the designated goods or services.

Implications for Businesses: The registration principle means that proactive steps are essential to secure patent and trademark rights. Businesses must identify potentially patentable inventions or distinctive marks early and strategically decide whether and when to file applications. The examination process requires careful management and can involve responding to office actions from the JPO.

Copyrights: The Principle of Automatic Protection (Non-Formality)

In stark contrast to patents and trademarks, copyright protection in Japan (as in most Berne Convention countries) arises automatically upon the creation of an original work. No formal registration or other procedural steps are required for the copyright to exist or be enforced.

Automatic Vesting: As soon as an author creates an eligible work (e.g., writes an article, composes music, develops software code), copyright subsists in that work.
Optional Registration: While not a prerequisite for protection, Japan does have a copyright registration system. Registration can serve certain practical purposes, such as providing prima facie evidence of authorship or the date of creation, or for recording transfers of copyright. However, these are largely evidentiary or transactional benefits rather than conditions for the existence of the right itself.

Implications for Businesses: The automatic nature of copyright protection means businesses do not need to incur upfront registration costs for every copyrighted work they create. However, it also means that careful record-keeping regarding authorship, date of creation, and ownership (especially for works created by employees or contractors) is crucial for later proving rights in case of disputes.

3. Scope of Exclusive Rights: What Can You Prevent Others From Doing?

The scope of exclusivity granted by each IP right dictates what actions the right holder can prevent others from taking.

Patent Rights

A patent grants the patentee the exclusive right to "work" the patented invention as a business. "Working" is defined by statute and includes:

For an invention of a product: manufacturing, using, assigning (selling), leasing, importing, or offering for assignment or lease the patented product.
For an invention of a process: using the patented process.
For an invention of a process for manufacturing a product: in addition to using the process, using, assigning, leasing, importing, or offering for assignment or lease the product manufactured by that process.

This means a patent holder can stop others from commercially exploiting the invention in these ways.

Copyrights

Economic Rights: These allow the copyright holder to control various uses of the work and derive economic benefit. They typically include the right of reproduction, public transmission (including making available online), adaptation (creating derivative works like translations or movie versions), distribution of original or copies, rental, and public performance/exhibition.
Moral Rights (Author's Personal Rights): These are personal to the author and, in Japan, are generally considered inalienable. They include the right to make the work public, the right of attribution (to be named as the author), and the right of integrity (to object to derogatory modifications of the work).

Businesses holding copyrights can prevent unauthorized copying, distribution, adaptation, etc., of their protected works.

Trademark Rights

A registered trademark grants the owner the exclusive right to use the trademark on the goods or services for which it is registered. It also allows the owner to prevent others from:

Using an identical or similar trademark on identical or similar goods/services if such use is likely to cause confusion among consumers as to the source of the goods/services.
In some cases, using a well-known or famous trademark even on dissimilar goods/services if it is likely to dilute the distinctive character or tarnish the reputation of the famous mark.

The primary goal is to prevent competitors from unfairly capitalizing on the brand owner's reputation and to protect consumers from deception.

4. Duration of Protection: How Long Do the Rights Last?

The lifespan of these IP rights varies considerably, reflecting their different purposes.

Patents: A Finite Term for Innovation Incentive

Patent rights in Japan generally last for 20 years from the date of filing the patent application. This term cannot be renewed.

Rationale: The 20-year term is intended to provide a sufficient period for the patent holder to recoup R&D investments and profit from the invention, while also ensuring that the invention eventually enters the public domain for unrestricted use, thereby promoting further societal benefit and innovation.
Extensions: For certain regulated products like pharmaceuticals and agricultural chemicals, the effective patent term can be eroded by lengthy regulatory approval processes. Japanese law provides for a patent term extension of up to 5 years to compensate for such delays.

Copyrights: A Long Term Reflecting Author's Life and Legacy

For works by individuals: The term is the life of the author plus 70 years following their death.
For works by legal entities (corporate works) or anonymous/pseudonymous works: The term is typically 70 years from the date of publication (or 70 years from creation if not published within 70 years of creation).
(Note: The duration was extended from 50 years to 70 years post-mortem/post-publication due to amendments related to the Trans-Pacific Partnership (TPP) agreement, an update from the information in the 2014 provided document which stated 50 years.)
Rationale: The longer term for copyright reflects the desire to protect the economic interests of authors and their heirs throughout the author's lifetime and for a significant period thereafter, and to allow for the exploitation of works that may have enduring cultural or commercial value.

Trademarks: Potentially Perpetual Protection for Brands

Trademark rights in Japan are initially granted for 10 years from the date of registration. However, crucially, these rights can be renewed indefinitely for further 10-year periods, provided the trademark remains in use and the renewal fees are paid.

Rationale: Trademarks protect the goodwill and reputation associated with a brand, which is built up over time through continuous use and investment. As long as the brand remains active and distinctive in the marketplace, the rationale for its protection continues, hence the possibility of perpetual renewal.

5. Overlapping Protections and Strategic Considerations for Businesses

It's important for businesses to recognize that these IP rights are not always mutually exclusive. Different aspects of a single product or service can often be protected by multiple forms of IP simultaneously.

Example: A Smartphone:
- Patents: Could protect the underlying technology, such as the communication methods, the processor architecture, specific user interface functionalities, or the manufacturing process.
- Copyrights: Could protect the software code for the operating system and applications, the graphical user interface design (as an artistic work), user manuals, and marketing materials.
- Trademarks: Would protect the brand name of the phone, the company logo, and possibly distinctive product shapes or sounds.

A comprehensive IP strategy involves identifying all relevant IP assets and deciding on the most appropriate forms of protection for each. This includes considering:

Cost and Effort: Patent and trademark registration involve upfront costs and examination processes, whereas copyright arises automatically.
Nature of the Asset: Is it a technical idea, an original expression, or a brand identifier?
Business Goals: Is the aim to prevent copying of a core technology, control the use of creative content, or build brand recognition?
Duration Needed: How long is protection realistically required for the asset to be commercially valuable?

Understanding these distinctions allows businesses to make informed decisions about investing in IP protection, managing their IP portfolios effectively, and respecting the IP rights of others.

Conclusion

Patents, copyrights, and trademarks each play a unique and vital role in the Japanese intellectual property system. Patents protect the functional and technical aspects of inventions, driving innovation through R&D incentives and knowledge disclosure. Copyrights safeguard the original expression of creative works, fostering cultural and artistic development. Trademarks protect brand identity and goodwill, ensuring fair competition and consumer trust.

For businesses, recognizing the distinct subject matter, mode of creation, scope of rights, and duration associated with each of these IP forms is fundamental. This understanding empowers them to develop robust strategies for protecting their innovations, creative outputs, and brand reputation, ultimately enhancing their competitive position in the Japanese and global markets.