Trademark law varies from nation to nation, and staying on the right side of the rules takes some research. Even how you mark your trademarks on product packaging can get you into trouble with foreign regulators if you are not careful. Nevertheless, how these markings are used in different countries means that companies cannot take a "one size fits all" approach to packaging and labeling.
If all of this is not confusing enough for you, here are some other trademark rules to consider. In Japan or India, such a mistake could lead to fines or even imprisonment. Trademark owners have some options to handle issues with foreign rule regimes, although there are drawbacks to them. You may apply for a trademark registration either before or after you use the mark, but a registration will not be issued until the mark is actually used.
The registration is effective for 10 years, but may be renewed over and over for so long as the mark continues to be used. See our " Questions and Answers on Trademarks" for more information on registration. Creating Your Trademark: What to do and what not to do Remember that your Trademark is an indication of the source of goods or services It is not the name or description of a specific thing, as such, nor is it necessarily the same as your company name.
Be sure to use your mark correctly! Don't talk about putting on your Nikes with your iPod in your pocket while you eat Oreos and play a game on your iPad. Don't "Google" something - do a search on the Google search engine. Capitalize the mark, as appropriate: Xerox, Craftsman, Kodak. Never let your mark become "generic" A generic mark is not really a trademark, but is simply the only way to refer to a product. Some examples of marks which started out as trademarks, but have become generic at least in the USA are: "yo-yo" - originally a trademark of the Duncan company for "return tops" "aspirin" - Bayer's trademark for "acetylsalicylic acid" and still a registered mark in many countries, especially in Europe Believe it or not, "heroin" was also a Bayer trademark at one point "escalator" - Otis Elevator Company's mark for "moving stairs" "zipper" - owned by B.
Goodrich for "slide fasteners" "thermos" - belonged to the Thermos Company for "vacuum flasks" they still own registrations of "Thermos" for other products such as coolers, etc. Some of the things to consider: Capitalization : While it is true that typography doesn't matter if you are looking at "likelihood of confusion" for infringement purposes, it is important to be consistent in typography if you are trying to establish a mark, so that people will recognize your mark as your mark.
If you use someone else's trademark be sure to acknowledge their rights. Before you begin to use a mark, choose it carefully and be sure you're not infringing on someone else's mark. Choose the "strongest" mark possible. Coined or Fanciful Marks are those which have no meaning, outside of the mark itself. Neither had any meaning in any language before they were invented to describe new products.
Arbitrary marks use ordinary words, but the words are not associated with the product. For example, "Shell" for petroleum products, "Wishbone" for salad dressing, "Amazon" for a bookseller, "Apple" for computers. Suggestive marks are less broadly protected, since the words in the mark are associated with the product.
They become stronger through use, as the mark acquires distinctiveness. Descriptive marks convey an immediate idea of ingredients, qualities or characteristics of the goods or services. If the mark functions to identify the source of the goods, either when adopted or through use, it may be registrable, but is afforded less protection than coined, arbitrary, or suggestive marks. The division between suggestive and descriptive marks is not always easy to spot.
Generic marks, as noted above, are not registrable and convey no rights at all. Avoid these Marks! These marks should be avoided: Geographic origin or primarily a surname : For example, "Ithaca" for maps of the City of Ithaca, or for T-shirts with the name "Ithaca" on them made and sold in Ithaca, New York.
The test is whether or not the purchaser is buying the product because of the geographic connotation California Wine or those t-shirts as souvenirs of a visit to beautiful Ithaca, New York or because the mark is associated with the product Ithaca shotguns. Beware of using a geographic location in a misleading way - "California's Best Wine" for wine made in New Jersey, for example.
Scandalous or disparaging marks: obscenities, racial or ethnic epithets, etc. Pardon us for not providing examples on this family -friendly web page Insignia of a government agency, or of certain organizations protected by law. Flags or National or State Insignia: Section 2 b of the trademark act prohibits registration of a mark which "Consists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof.
While an unregistered brand name may have some value, it is not comparable with the asset potential of a registered brand. There is no single right or wrong approach. There are myriad considerations to bear in mind with each choice to use an appropriate symbol or not. Or indeed to use it selectively in various ways through different channels and media.
Some of these considerations have legal implications and others will form part of your marketing or branding strategy. What works best for your brand and what legal requirements your region may demand will need specific expert advice but the below points will hopefully provide you with some food for thought! One use case of symbol usage that is often confusing is the example of very large companies such as Google who own many registered trademarks but do not use the symbols to which they are entitled.
Or, in other cases, they will use symbols in some cases or channels but not in others. There are restrictions on use in regions where there is not a valid registration. This can cause issues for very large corporations whose products may be available in regions in which they do not have a valid trademark registration. If the application goes through, you could end up infringing on the trademark rights of your competitor.
You could also lose out on the option to use the mark at all in the future. Five years after you register a trademark , the mark becomes incontestable, which means that you hold clear evidence of your right to use that mark. Incontestable trademarks hold more protection against infringement and limit the defenses that someone infringing on the trademark can raise. If you don't use the TM symbol on your logo, symbol, design, phrase, or word, your competitors may not know that you're claiming this for your business.
Some companies use multiple logos to test the water, so it's hard to know for sure which one they plan to use as the main option. But with a TM at the end of the mark, there is no question that this is the one that will represent the company. If you don't use the registered mark, you may lose out on the right to take legal action against someone who infringes on your mark.
Without that clear indication that you hold trademark protection, a company owner could argue that he or she never knew. One common mistake is believing that the TM and R symbols are interchangeable.
Anyone can use the TM symbol without legal repercussions. It may also be a mistake to not use either the TM or R symbol on your mark. Without the TM symbol, your competitors won't know for sure that you're planning to register the mark.
Using the R symbol also offers legal protection if someone tries to copy your design. TM stands for trademark, although its use does not mean the associated mark holds legal protection.
Anyone can use the TM on a symbol, phrase, word, or design. It indicates to competitors that the company using it stakes its claim on this particular design. Many companies also use it on their marks when the trademark application is in process with the USPTO. In this case, it means that the trademark is pending. You cannot legally use the registered symbol until you receive approval on your application.
Registering a trademark is not a requirement under any law. But failing to do so puts your company at risk. Another entity could register a similar mark, causing you to lose the opportunity to register yours in the future. Additionally, if the other company receives approval on the application, continuing to use your similar mark puts you in legal trouble.
The competitor can sue you for trademark infringement.
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