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Tricks of the Trademark

Tricks of the TrademarkAs frivolous lawsuits go, attempts to trademark phrases, sounds, and even numbers can easily stray into the ridiculous. Take, for example, Harley Davidson’s attempt to trademark the sound of their engines or Syracuse University’s claim that they own the color orange. Graphic or other representations of brands that set them apart in the marketplace are hotly, even if sometimes laughably, contested.

This is because your marks matter. Trade and service marks identify your brand and distinguish your products, and they’re worth protecting. If you’re marketing yourself correctly, your customers will come to recognize your brand via these marks. Some customers become quite passionate about them!

Tips for Establishing Your Mark

Any image, word, phrase, sound or symbol used to identify a brand or product can serve as a legally protected mark. The trick, then, is using those marks correctly in order to establish common law ownership and, eventually, legally registering that mark as your own.

  • DO start using ™ and ℠ to mark your products and services. These marks are intended to be used before you have earned legal registration. Once you’ve decided on a company, product, or service name (and ascertained, via a few Google searches that no one else is using it), start using the appropriate indicia to mark it. The sooner you begin to mark your assets, the stronger your case will be when you decide to apply for legal registration of your marks.
  • DON’T confuse trade and service marks. A trademark (™) denotes a good while a service mark (℠) indicates the source of a service. For example, Apple has registered as a trademark the phrase “iPad mini” while “App Store” is a service mark.
  • DO use marks in superscript. Using these marks in superscript (small letters “above” the other letters) is correct, and using them correctly helps build your case for legal registration of your marks.
  • DO use them on the first prominent appearance of your phrase or logo in all documents or designs. For every marketing piece you produce, be it a flyer, case study, or banner, include the correct indicia on the first prominent use of the logo or phrase. There is no need to use it in subsequent appearance of the mark.
  • DO decide on your preferred protocols for using your marks, and stick with them. For instance, if your product name is Amazing Shoes™ (plural), you’ll want to use that exact representation every time, so even if you’re speaking about one shoe (singular), use your mark consistently: “…this Amazing Shoes™ sandal…”
  • If your product or service is also the name of your company, DO use different indicia when using them in different capacities. So, “Amazing Shoes, Inc.” should be used when referring to your company, but Amazing Shoes™ when referring to your product.

And remember: once you’ve registered your marks, DON’T forget the explanatory statements. When you’ve registered your trademarks and service marks with the United States Patent and Trademark Office, continue to protect those hard-earned assets by including an explanatory statement of ownership of the marks on the first page of documents in which they appear, usually as a footer. A standard example is: “Amazing Shoes is a registered trademark of Amazing Shoes, Inc. It is used here with permission.”

One last thing: I’m not a lawyer, so be sure to consult an attorney who specializes in intellectual property matters when making decisions about your marks!

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Original Publication DateFebruary 13, 2015
Related categoriesLegal

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