Using Trademarks: Everything You Need to Know
When using trademarks, it's important to remember that your trademark identifies your company as the source of products or services. 4 min read
2. Trademark Infringement
When using trademarks, it's important to remember that your trademark identifies your company as the source of products or services. It isn't the name or description of a specific aspect of your company, nor is it your company name, in most cases. It's also important to use your trademark correctly so that it's character is preserved.
Trademark Usage Guidelines
Some other guidelines for using trademarks include the following:
- When possible, include a general description of the goods or services in combination with the mark. For example, you can listen to your iPod® or iPad®, you can eat an Oreo® cookie, or you can wear Nike® apparel or shoes.
- It's also best to avoid using the trademark as a verb. You “copy” something with a Xerox® copier, but you don't “Xerox” it. You don't “Google” information; rather, you use Google to search for information.
- The trademark shouldn't be used as a plural or possessive, either. Kids play with Lego® bricks, instead of “legos,” and you eat Hershey® chocolate, not Hersheys or Hershey's.
- Trademarks should also be capitalized when it's appropriate, such as Xerox, Kodak, and Craftsman.
- Branding can also be used to clarify the status of your trademark, such as Kleenex® Brand Facial Tissue, as opposed to a “Kleenex.”
- Trademark symbols are used next to the mark for federally registered trademarks. This is the R within a circle symbol. Unregistered marks are denoted with a superscript "TM TM" or "SM SM."
- Trademark notification doesn't need to be listed every time. A short note stating trademark ownership, such as “X and Y are Registered Trademarks of Z Corporation” is sufficient.
- Never let your mark become generic. A generic mark isn't a true trademark but rather a way to refer to a product. Using your mark correctly is the best way to avoid this.
- Once you decide on a mark, you have to be consistent in the way you use it. Inconsistency allows the mark to become weak and lessens its recognition and association with your products.
- Consistent typography is important. Punctuation should also be clear and consistent. Once you decide, stick with them every time. The generic term you use for your product must always be used the same way as well.
- Trademarks usually go in the upper left-hand corner of the page. Once you begin, keep the trademark in the same spot.
- The same goes for color, even if you don't use much color. The only exceptions to this are putting a color logo in black-and-white print on certain documents and using different colors to distinguish between families of products.
- Trademarks and service marks are proper adjectives, not nouns or verbs. They should always be used as adjectives to qualify a generic noun that describes the product or service.
- Trade names are proper nouns, not adjectives. Trade names are used in the possessive form and don't need to be followed by a product or service description.
- Trademarks are usually distinguished by using all capital letters or italics in a running text. The generic noun should always follow immediately after the trademark name, at least once, and should be indicated on any separate communication form or the first time the trademark is used in the piece.
- Trademarks can be emphasized by using the word “brand” after the mark or by using a trademark symbol that's appropriate for its status.
There are a few easy ways to avoid trademark infringement:
- If you use someone's trademark, acknowledge their rights in a disclaimer.
- It's usually permissible to use a trademark or service mark if referring to a product or service, as long as the mark is being used truthfully.
- Trademarks cannot be used to mislead others as to the company's affiliation, sponsorship, or endorsement of your company or its products and services.
- Domain names, meta tags, wallpaper, purchased keywords, and some other uses of a trademark could subject you to legal liability.
In some instances, the use of another company's trademark is legitimate. Examples include the following:
- Consumer comparison surveys
- Compatibility assurances
- Other “fair use” situations that don't require authorization
The Lanham Act, 15 U.S.C §§1051-1127, is key to understanding the legal concept of trademarks, trademark infringement, and unfair competition. The Lanham Act was designed to prevent consumers from becoming confused about the “relationship between a trademark holder and a competitor seeking to use that trademark or a substantially similar mark in its own marketing efforts” or about the source of the product.
If you need help using trademarks, 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.