A Brief Guide to Using Trademark and Copyright Symbols
As the resident Lionel Hutz here at Digett, I occasionally get asked about trademark and copyright issues — or, to be specific, the use of the symbols representing those concepts in design and copy elements. What I've found is that the questions remain the same from party to party, so I thought it might be helpful to cover some basic ground on the why, when, and how of using trademark and copyright symbols.
First, some important disclosures
One: I am not a lawyer.
Let me get that little detail out of the way, lest the state bar comes knocking at my door. I grew up around them and I'm comfortable navigating that world, but if you want real legal advice, pony up and pay for an attorney. It's not necessary for a discussion of this topic, however, which leads me to my next point.
Two: This is only about the symbols — ®, ™,℠, ©, and the like.
It's not about the value of trademarks or copyright registration, since I don't want it thought that I'm discouraging the protection of one's intellectual property. Nor am I attempting to address how someone goes about the process of registering.
Moreover, I'm covering only situations faced here in the U.S.; this may not apply in other jurisdictions.
Why you should use trademark and copyright symbols
Contrary to popular belief, it's not required; you do not have to use trademark and copyright symbols in your design or copy to guarantee or safeguard your legal rights.
Additionally, there are good reasons to not use them, particularly if you want to avoid having your publications look like crop circles or an untitled Led Zeppelin album.
Granted, some may argue with me over this, especially if they fear trademark abandonment or infringement. However, while trademark rights are based on use, that means use of the mark, not the symbol.
But even if it's not legally required, using the symbols may have benefits. For one, should you ever find yourself in the unfortunate position of having to defend against unauthorized use of your mark or copy, it may help to show that you've established a record of putting people on notice.
In addition, some people might view mark registration as a sign of professionalism or stability.
Another important point: you may only use the registered trademark symbol (®) if your trademark is, indeed, registered with the U.S. Patent and Trademark Office.
There are no restrictions, however, on the use of ™ and ℠, which indicate an intention to seek trademark/servicemark status. There are also no limitations or restrictions on using the copyright symbol (©).
When and how you should use them
If you (or your lawyers) insist on using trademark and copyright symbols, the key is moderation. To illustrate:
"At Digett®: Interactive Media & Marketing™, we believe in protecting intellectual property℠ (© 2010 Digett®: Interactive Media & Marketing™, all rights reserved)."
Yes, that's an exaggerated scenario, but it's equally annoying when an organization uses the registered trademark symbol every time they print their name. It's unnecessary, not to mention illegible.
Here are a few suggestions for judicious use:
Consider using trademark symbols (registered or otherwise) one time in your copy, preferably in a header or toward introductory content. Leave it out an all subsequent references to the mark. Copyright symbols should not be used, in my view.
This is a case-by-case call for me. Most logos I come across look stilted, even marred, by the inclusion of a trademark symbol. However, if it's considered during the planning process and not tacked on afterward, it can be done with grace. Just make sure it doesn't distract or confuse.
On websites, I'm a fan of using a global footer for both copyright and trademark notices. It's usually unintrusive, and for those who are truly concerned about enforcement, it ensures inclusion on every page of the site.
In other online communications, particularly those that involve personal engagement, I tend to err on the side of exclusion. Nobody wants to talk with Digett®: Interactive Media & Marketing™.
Someone else's mark
Here's a potentially sticky situation. If you're using a trademark registered by another person or organization, you're not required to use the symbol unless specified by agreement.
However, many people choose to include it anyway just to avoid potential hassle. I think that's the safe play, but avoid multiple references/uses, if at all possible.
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I would only add one point. Many people use the ™ mark even when the mark itself is registered in the United States and they are thus legally permitted to use the registered mark: ®.
One reason is that an issue can sometimes arise in the international context when using the registered trademark symbol on products or advertising materials. For example: if you are exporting a product to a country that is marked [YourTrademark®] and you have not, in fact, registered your mark in that country, you run the risk of violating their trademark laws, even though you are complying with US laws.
And I suppose that makes sense, as the converse is also true. A foreign company cannot register their trademark abroad (e.g., Romania or Australia) and then use that foreign registry as the basis for marking products sold in the United States with the ® designation.