A trademark is a word, phrase, or other graphic symbol used to show the source of goods or products. We have talked before about the difference between a service mark and a trademark. It is common to use the term trademark to cover both because the legal concept of using intellectual property to show the source of both services and products is called trademark. The only real difference between the two is in describing what you are selling with the mark. Today, we will discuss one of the reasons the distinction matters.
We have talked before about the three different levels of protection for your trademark. Today, we are going to talk about your logo says about the trademark protection you have, and how you can work to protect yourself a little better.
We have talked before about a number of aspects of trademarks. What we have never talked about is how to let others know the protections you are using. Today, we are going to talk about trademark symbols and notice. When and why you use the various trademark symbols.
At the most basic level of your protection is the common law rights associated with a business’s use of a trademark. Those rights are available to you because of your use of the trademark. The problem you will have if you rely on common law rights is: notice.
- How do you let others know you are using your trademark in business?
- How do you let people know your trademark is, in fact, your trademark?
Common Law Trademark Notices
That is where the symbols you see on business names and logos come in. So, let’s talk about how you let other people know what you are doing with your mark.
The use of the superscript ™ can be used to indicate a mark is used by a business to describe the source of its products. There is no filing requirement to use this symbol. This is an option whenever you put a trademark into commerce. You can use the symbol in text (e.g., Legal to English ™) or you can use it in a logo. Below is an example from the original announcement from the opening of my law practice.
Of course, I use the ℠ in the mark because it is a service mark. More on that in a second, the ℠ could just as easily be exchanged with a ™. The placement of the superscript is often indicative of what is being marked as the trademark. Look at the following example from my original law firm design work:
Placement is Important
Notice how the placement of this differs from the placement on the announcement graphic. In one graphic, the superscript is indicating the tie is the trademark and in the other the superscript is indicating the entire graphic is a trademark. Incidentally, the idea behind this graphic was to protect all of the individual trademarks that comprised the logo. Each of the individual pieces of the graphic are individual trademarks of my law firm. Each of them have been used in various ways over the years. The original tagline has fallen out of use, but the placement of that superscript was designed to avoid having three different notices markers of trademarks in one logo.
Remember, the common law rights only protect you from the time you begin selling products or services in the place you sell your products or services. This symbol, however, can give you a leg up if you are trying to defend your rights.
Common Law Service Mark Notices
The use of the superscript ℠ provides the same notice as the ™. Only for service marks. So, the first place to start will be to determine whether you have a trademark or a service mark. Sometimes, you can sell both. In that case, you need to make sure you use the symbol appropriate for the use at hand.
Nothing Special for State Registrations
State registration does not add much in the way of protection. State registration of a trademark provides notice of your use of a trademark throughout the state. There is, however, no special symbol granted for state registrations.
The superscript symbols we just talked about will be the same symbols you use if you register at the state level. There is no way to distinguish (at least visually) the difference between common law rights and state protection of your rights. The only real benefit you receive from state protection is the registration. It serves as irrefutable proof that you are using your mark, and when you began using your mark in the state. It helps if you ever need to prove your use of the mark. That, of course, is only true for the state where your mark is registered.
State rights are not very effective when it comes to online business. State rights may give proof of your mark and your use of a mark in your state, but if you are in online business, your reach is beyond your state. Your reach is in interstate commerce.
So, what do you do then?
When you are first getting started, you want to, at a minimum, use the superscripted symbols for your logo (or blog name). Make sure you are clear how you are using the symbol. Your mark is about the source of products or services. Depending on how you are using your online presence, you may have both. For instance, I am a lawyer. I provide a service. All of my services are service marks. Legal to English, however, is a source of products. Legal to English provides you with information packaged in a way for you to read and understand the legal that affects your business everyday. You need to consider the same for your business. If you are providing content for people (even if it is free of charge as a way to increase your reach and credibility for your services) you are providing a product. Your blog is a trademark of your business. So, in online business, you will use the ™ for your blog and any of your online resources you create and you will use ℠ to describe any services that you offer (e.g., consulting, copywriting, etc.).
Federal Registration of Your Trademark
This symbol can only be used once a mark is registered with the United States Patent and Trademark Office. You may only use this mark once you have received the final notice of registration from the USPTO. You cannot begin using it simply because you have filed for trademark registration. You can only use it once your trademark is a part of the Federal Trademark Registry. The reason is because trademark registration is not guaranteed, you could go through the process of trademark registration and be denied. So, do not attempt to use this symbol unless you actually have a trademark registered at the Federal Trademark Registry.
This mark lets everyone who sees it know that you have protected your mark at the federal level. The use of the registered symbol (®) carries more authority if you take steps to protect your mark. If you do take those steps to protect your mark, you can even reference the registration information so the person infringing on your mark can know you are serious and that you have proof to back up your claims. Federal Registration gives you some extra protection and it helps establish proof that the mark is yours, everywhere in the country.
Use of the ® is your right to use once you have registered your mark. So, if you choose to go through the process of registering your trademark with the USPTO, tell everyone about it! Use the symbol as soon as you get the registration number. Add it to your logos. Add it to your text descriptions of the product.
Other Options to Protect Your Trademarks
Using the symbols to notify the general population that a trademark is yours is an effective strategy to ensure most people know it is your mark. It is a relatively easy solution to provide that notice. Make sure you are using the proper symbol for notice based on your use of your trademark. Don’t forget to update your symbol for notice if you choose to register your mark on the federal registry.
Do Trademark Symbols tarnish the Brand Image?
Do you think the use of trademark notice symbols tarnishes the brand image of a company? Many people don’t like to use the symbols because it clutters up the design. How do you feel about this? Have you found any creative ways to deal with trademark notice symbols without cluttering up your design? Let me know in the comments!