Re: Trademarks: TM or (R) ?

Subject: Re: Trademarks: TM or (R) ?
From: Dick Margulis <margulis -at- fiam -dot- net>
To: Jeroen Dekker <jeroen -at- square1 -dot- nl>
Date: Thu, 04 Mar 2004 09:42:17 -0500

Jeroen Dekker wrote:


Can anyone riddle me this, and send the response to me via email as well as to the list (I'm on digest)?

When does one use TM to follow a brand, and when does one use (R)? Do you use one for a company name, and the other for a product name? Does it signify a legal difference in the type of trademark a company has for that brand? Or do people just use what looks neat in their eyes?

Am I correct in thinking that you only need to use e.g. Windows (tm) the first time I mention it, and there's no need to use the (tm) for Windows in the remainder of the document?
Can I just suffice with something like "All brands and trademarks are the property of their respective owners." at the bottom of a document?



I can give you general guidance for US usage (although the real advice is to consult your company's intellectual property counsel for the only answer than counts); but I notice you are not in the US. Are you asking with regard to something that will be published in the US or in the EU?

IF AND ONLY IF this is for strictly US use, and if you do not have access to legal counsel, you are probably safe if you follow these guidelines:

1. What you refer to as (R) but is really an R in a circle, ® [Alt+0174 or & # 174 ; (without the spaces, which I only inserted to bamboozle htmlizing mail clients)] is used to signify trademarks that have been registered with the US Patent and Trademark Office. Your mark is not registered until they send you a certificate that says it is registered. Using the registration mark for an unregistered trademark is a no-no. R between parentheses has no legal significance and cannot be used in place of the R in a circle. If you are in a 7-bit environment, don't use a symbol; instead use a footnote that says "Trade mark registered U.S. Patent Office" or, if tight for space, "TM Reg. U.S. Pat. Off."

2. The superscript TM, ™ [Alt+0153 or & # 153 ; (without the spaces)] is used to signify that you claim trademark status under common law. You do not need to apply for registration of a trademark to assert this right and use the symbol. It is simply notice that you claim it as a trademark. Lowercase tm in parentheses has no legal significance and gives you no protection.

3. In either case, there are rules you ought to try to adhere to. In court cases, companies have not had to prove 100% adherence but only that they made a good faith effort to comply and succeeded in the preponderance of instances. One of the rules is that a trademark is an adjective, not a noun or a verb. Often the noun that the trademark modifies is the word brand (Kleenex brand tissues) because nobody could come up with something better. This does not apply to trade names, that is, the name of the company, only to trademarks. I find this rule confusing and hard to follow, but try anyway.

4. Most of us try to apply the practice of using the symbol on first use (within a chapter, within a Web page, within a book . . . practices differ). But some attorneys will advise that you use the symbol for every instance. Partly this depends on whether the trademark is a household name. IBM can get away with putting the ® next to the logo only part of the time. For a little software company nobody ever heard of, you'd best do it for every instance--at least until you become well known.

While we're on the subject, it is also worth noting that (c) does not mean copyright. Either use the C in a circle, © [Alt+0169 or & # 169 ; (without the spaces)] or spell out the word copyright.



Trademarks: TM or (R) ?: From: Jeroen Dekker

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