Can I Use a Trademarked Word: Everything You Need to Know
Can I use a trademarked word in advertising for my product? Just because a company owns a trademark does not mean that another entity can never use it.4 min read
Can I use a trademarked word in advertising for my product? Just because a company owns a trademark does not mean that another entity can never use it. The law allows you to use a trademark without getting the owner's permission for:
- Informational use: You use it to editorialize or educate about a specific product or service.
- Comparison use: You use it as part of an accurate comparison between products or services.
In plain language, using a trademark is not an act of infringement if you're not using it as a mark. For example, if you are writing an article about Apple and you use the symbol for the company in the headline and the body, you are not committing infringement. You are using the mark for an educational or news reporting purpose rather than a commercial purpose.
What Are Some Informational Uses of a Trademark?
Informational uses, also called editorial uses, of a trademark don't require permission of the trademark's owner. An informational use is one that informs, teaches, or expresses opinions covered by the right to free speech and a free press as described in the First Amendment of the United States Constitution.
For example, if you write an article describing a new Chevrolet truck that's coming to the market, you don't have to get permission from the company to use the logo. This is true, even if the article speaks negatively of the truck. You can use the word "Chevrolet" and the golden "bowtie" logo. It also doesn't matter where the article is being printed. You could be writing something in a newspaper or an academic journal.
If you decided to make a documentary about the history of trucks in the American market, you would not have to get permission to use the name and logo. The name and logo must be relevant to the subject matter. If you wrote a piece about overseas car makers, you would have no reason to use the Chevrolet name and logo, unless you specifically mentioned the company in the article for some reason.
Another informational use of a trademark is as part of a parody or commentary. If you write a short play about how teenagers are always on the phone, you could paste a Samsung logo onto the prop phones without committing trademark infringement.
What Are Some Comparison Uses of a Trademark?
Trademark law allows you to use a trademark in a comparison. An example of this type of use is creating a commercial that uses your mark and a competitor's mark side by side to describe differences. You can make a case that your product is of a higher quality and less expensive than the other company's product. You could use the competitor's logo and the price of its product.
Remember two important limitations here.
- You cannot alter your competitor's trademark in a way that is negative or misleading. That could lead to a case of trademark disparagement.
- Any data that you use in your comparison must be accurate. Opinions or subjective statements are hard to defend for accuracy.
What Is a Trademark?
According to the United States Patent and Trademark Office (USPTO), “A trademark is a brand name. A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services.”
What Is Infringement?
You are infringing on the trademark rights of another entity when you use its registered trademark without prior permission. For example, if you create an electronic tool and decide to stamp the Apple logo on it, you would be committing trademark infringement. Your use of the registered trademark could confuse consumers into thinking they are purchasing an Apple product. You would be profiting off Apple's reputation and Apple could sue you for infringement.
How Should a Trademark Be Used?
To legally use a trademark in a business setting, you must use the correct symbol with it. If the trademark is registered with the USPTO, the symbol ® should appear after the mark. For unregistered trademarks, TM (trademark) or SM (servicemark) should appear instead of the ® symbol. The trademark must appear as it's listed in the USPTO registry. If you're using a trademark in a non-commercial context, you don't have to include the symbol. You may want to capitalize it or put it in italics to indicate that it is a trademark.
If you need help determining if you can use a trademarked word, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.