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FAQ: How do trademarks work?

Postby bottleslingguy » Sat Sep 29, 2007 5:02 am

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What is the difference between a tm, sm and an R with a circle around it?

Postby Scrupulous » Sat Sep 29, 2007 12:38 pm

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A U.S. Trademark gives you federal protection by allowing you to associate your product quality with a visual image. It prevents others from using your work to improve their sales. A good rule of thumb for trademark infringement is: if it would compete with the sales of the trademark owner, then it is infringing.

State trademarks have become practically obsolete with the advent of the internet. This is because it is now much easier to set up interstate commerce (a requirement for federal protection). There are still some advantages to that route, though, in terms of priority, jurisdiction, and expenses.

The TM and the SM sybols are free to use, even without registration, and they indicate your intent to maintain control over the value of the mark and it's association with the product. Although it is no longer legally required to use these symbols, it can't hurt. If nothing else, it implies that that you believe in your work.

The circle R must, and can only, be used after a trademark or service mark has been successfully registered with the USPTO. It notifies would-be infringers that illegitimate revenue can be recovered.

Postby CriterionD » Mon Oct 01, 2007 4:35 pm

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A trademark is any word, phrase, or design, or less commonly an alternate "device" such as a sound or scent, used to describe a commercially sold product for the purpose of distinctively identifying it to relevant consumers. A servicemark is the same thing as a trademark except that it is used to describe a commercially available service instead of a tangible product.

On occasion, you may also hear the phrase “descriptive mark.” A descriptive mark describes the type of product or service it refers to, and not merely the company or brand offering the product or service. Descriptive marks are generally considered weaker than non-descriptive marks, and can be tougher to register. But that hasn’t stopped some from achieving meaningful trademark protection for their descriptive marks (i.e. Holiday Inn, Jiffy Lube, etc.).

Trademark rights are established by use - not by federal registration. Filing for federal registration, however, provides several main advantages, including: your trademarks become easier to enforce in the event of litigation; it becomes easier to expand the geographic scope of your trademark protection; and you may be able to establish priority dates, both in the U.S. and abroad, before a product is ready to be sold commercially.