Pop quiz: where did Nabisco put their logo on their boxes? Right - in a triangle in the the upper left-hand corner of the front of the box. Even if you couldn't see the logo clearly at a distance, the red triangle in the corner of the box identified the source of the biscuits. Color: Even if color isn't part of the mark as such, be consistent in what color s you use when you use color.
It's OK to put your mark in color on the box or label, but use it in ordinary black and white type in spec sheets and other documents which are reproduced in black and white. However, don't put the mark in blue on some boxes and red on others and green on the website and yellow in the ads. Pick one, and use it consistently. One exception to this could be if you establish families of products and use color to distinguish the families - for example, if you sell labels and all labels with removable adhesive have blue labels and all those with permanent adhesive have red labels - but that's consistent use, too.
A trademark search is a basic first step for anyone considering adopting a new trademark or service mark. With today's computerized databases, a trademark search is relatively inexpensive and fast, and cheap insurance against having to change your mark or defend a lawsuit later. We recommend that you start by doing a preliminary search yourself. Then, when you've settled on a mark you think is OK, confirm it by having a professional search done. See our Trademark Budget Estimator for our fees for trademark searching.
If you have a trademark search done by a service, be sure it includes Federal and State Registered Marks, at a minimum, and an opinion on the results. You should not stop with registered marks, either - check out the World-Wide Web search engines and yellow-pages listing to find anyone using the mark who has not yet registered.
You wouldn't want to spend a fortune adopting and promoting a mark nationwide, only to find out that a competitor has prior use rights. The test of a mark is "likelihood of confusion" - that is, is the proposed mark so close to an existing mark that it is likely to confuse the intended consumer as to the source of the goods? If there is any question, play it safe and try another mark or consider contacting the prior user and getting his OK, if you really want to use a mark which might be a problem.
Marks vary in strength over a spectrum from a coined or invented mark, which can be very strong, through generic marks, which are not really trademarks at all.
The stronger a mark is, the broader the protection it is afforded. It's been our experience that most people choose marks which are very weak and, in general, forgettable. Marketing departments dearly love generic marks, and can't understand why we would advise against "Raspberry Beer" as a mark for beer made with raspberries yuck!
There are lots of sources for good marks - look in an encyclopedia or dictionary, or to mythology or geography or history, for words whose connotations are positive and appropriate to your product.
Must be a connection somewhere , "Hercules" for strength registered for rope since , among other things , "Mercury" for speed FTD florist symbol or boat motors , the Rock of Gibraltar for permanence used by Prudential Insurance , "George Washington" for honesty broth, apples, many others , "Obsession" for emotional appeal a perfume brand , and so on.
Coined marks can be very strong and valuable, and you can make them sound as if they mean something when they do not. If you are planning for a line of products, consider choosing a mark which lends itself to becoming a "family" of marks. For example, Kodak has a wide variety of marks beginning with "Kod", as in "Kodell" for fabrics, "Kodalux" for processing, "Kodachrome" for film, and so on.
Some marks, otherwise valid, are either prohibited by law or convey no rights. These marks should be avoided:. Mouse ears are a registered trademark of Walt Disney Company.
Watch out for pitfalls Registering Your Mark. Marks which are in use in interstate or foreign commerce i. Patent and Trademark Office. Such registration conveys a number of advantages, not the least of them being actual nationwide notice to possible infringers. Registration allows the trademark owner to use the r symbol, to sue in federal courts, to recover damages, profits and costs from an infringer, and conveys a presumption of validity to the ownership and right to use the mark.
After 5 years of registered use, the mark may, upon application, be declared incontestable. Federal registration also allows you to file for registration in other countries. 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. A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. A trademark is used for goods, while a service mark is used for services. A common misconception is that having a trademark means you legally own a particular word or phrase and can prevent others from using it.
For example, let's say you use a logo as a trademark for your small woodworking business to identify and distinguish your goods or services from others in the woodworking field. This doesn't mean you can stop others from using a similar logo for non-woodworking related goods or services. Another common misconception is believing that choosing a trademark that merely describes your goods or services is effective.
Creative and unique trademarks are more effective and easier to protect. Read more about strong trademarks. The TM symbol is used for common law marks that represent goods or services that are not federally registered with the USPTO, including marks whose registration is pending. The SM symbol is used for common law trademarks that represent services. A Note on Registration While you will receive common law protection without federally registering your trademark, registration carries multiple benefits including enhanced rights and evidentiary benefits at trial.
You can learn more about registering your trademark at www. Print Materials — If the print materials consist of 1—2 pages, designation in the first instance of the mark is sufficient. For longer materials, it is recommended but not a hard and fast rule that the designation be used at least once per page in which the mark appears. A good way to achieve this is to place the designation anywhere there is a static representation of the mark that is duplicated on each page, such as in a header or footer.
Social Media — The guidelines for marks appearing on social media can be more relaxed. The majority of companies will not use the designation following their mark in every blog post, status, or tweet, although some may try to do so in an effort to fight against their mark from being considered generic.
Email International IP Expansion Considerations. Rules and Regulations. Post-Grant Proceedings. Patentable Subject Matter. Kenneth R. Emmanuel D.
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