29 Jul Proper Use of a Trademark: What You Should and Should NOT Do **Attorney Advertising **
A trademark is a word, phrase, color, sound, design, symbol, or combination of such that identifies the source of goods or services from others. However, using your trademark to distinguish your product or service from others is not as simple as placing a ™ or Ò beside your trademarked name or graphic. There are a number of rules and best practices that dictate how and when your trademark should be used.
Proper use of a trademark not only applies to use in your company, but should also dictate how third-parties or licensees use your marks. Failing to have a plan to ensure the proper use of your mark can ultimately undermine your trademark or cause a loss of rights. For maximum protection, make sure that you are adhering to the following standards and guidelines:
- Always Use Your Trademark as an Adjective
Trademarks and service marks should be used as proper adjectives, rather than nouns or verbs. This helps to ensure that your marks do not commit “genericide,” as it is unfortunately referred to in intellectual property law jargon, which happens when your mark loses trademark protection for being too generic. Xerox became a victim of genericide and lost its trademark when the word became common vernacular for copying something rather than pointing back to the Xerox brand.
To help ensure this doesn’t happen to your trademark, follow the mark with the common descriptive noun that it modifies. In keeping with the Xerox example, to avoid the loss of trademark rights it would have been best to say, “use a Xerox copy machine” rather than “Xerox these papers.”
You can also use the word “brand” to help reduce the possibility that the trademarked name will be mistaken as the generic name for a product, saying, for example, “Adidas brand shoes.”
Likewise, marks should not be used in a plural or possessive form unless the mark itself is plural or possessive (McDonald’s would be an example).
- Use Your Mark Consistently
Create a plan for how you want to use your mark—and keep it consistent. That includes keeping your punctuation and capitalization consistent everywhere the mark appears. Not doing so can weaken your mark and lessen the chances that others will recognize your mark as an identifier of a product or service associated with your brand.
- Use Proper Symbols and Their Placement to Identify the Status of Your Mark
Trademark symbols exist for the purpose of putting others on notice of your rights. This notice helps to deter others from using your work and can serve as evidence if you need to commence an infringement lawsuit at any point. Placement of your symbol should generally be in superscript in the upper right-hand corner following the word, phrase, or graphic. In some cases the trademark symbol can appear as subscript in the lower right corner. While your symbol does not have to appear after every occurrence of your trademark in a single text, you must at least use the symbol once, generally after the first or most prominent appearance of the trademark.
- Make Your Trademark Distinctive
Use your trademark in a way that distinguishes it from surrounding text. You can accomplish this goal by capitalizing the initial letters in your mark to create distinction (Abc Company), using all caps (ABC COMPANY), italics (ABC Company) a different font (ABC Company), and even different colors (ABC Company).
The Effectiveness of Your Marks Depends on Proper Use
Using your trademark properly in your marketing materials and online can help ensure that your marks do not lose their effectiveness over time and provide you with the intellectual property protection that you depend on as a business owner or brand.
If you have questions about how to properly use your trademarks, or if you need help applying for a trademark in the first place, we invite you to contact our trademark attorneys at 888-666-0062 to schedule a consultation.
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney.