Albert W. Starkweather, Philatelic Communicator
Author’s note: This is intended as an overview to this area and does not constitute legal advice. Writers and editors with specific questions about fair use and copyright should seek legal advice.
A trademark is a word, name, symbol or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product.
The terms trademark and mark are commonly used to refer to both trademarks and service marks. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark.
Trademarks that are used in interstate or foreign commerce may be registered with the U.S. Patent and Trademark Office (USPTO).
As with copyrights, trademarks do not need to be recorded with the government. Rights can be established based on legitimate use of the mark. However, owning a federal trademark registration on the Principal Register provides several advantages, including notice to the public of the registrant’s claim of ownership of the mark; a legal presumption of the registrant’s ownership of the mark and exclusive right to use the mark nationwide on or in connection with the goods and / or services listed in the registration; the ability to bring an action concerning the mark in federal court; the use of the U.S. registration as a basis to obtain registration in foreign countries; and the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.
Any time a person or company claims rights to a mark, the ™ (trademark) or sm (service mark) designation may be used to alert the public to the claim, regardless of whether an_ application has been filed with the USPTO.
However, the federal registration symbol — ® — may be used only after the USPTO actually registers a mark, and not while an application is pending. The registration symbol may be used only on or in connection with the goods and / or services listed in the federal trademark registration.
A disclaimer may be added to the front matter of a book or the masthead of a periodical publication that lists a great many product or trade names to avoid having to add a trademark or registered trademark symbol to each entry:
Trademark Notice: Product or trade names may be trademarks or registered trademarks, and are used only for identification and explanation, without intent to infringe.
Those creating trademarks should remember that graphical images are much easier to protect than words. While the General Electric meatball has survived for decades, thousands of trademark names have become generic terms, such as nylon, linoleum, and escalator. Even Xerox is facing an uphill battle in defending the well-known name for its photocopying machines, as such expressions as “I need to have this contract xeroxed” enter the vernacular. Xerox is not a noun, verb, or adjective, but rather a trademark. (Also see article on copyright.)
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