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Trademark Usage

Posted Saturday, June 5, 2010 by Jim Ruttler

Assuming a good trademark is selected, protected, and policed, trademark usage requires four main considerations. First, trademarks should be used as adjectives and not as nouns. For example, proper trademark usage of PENSOFF for bowling balls could include ‘PENSOFF brand bowling balls’ as opposed to ‘compare our bowling gloves and PENSOFFs’. The former makes it clear to consumers that the mark is a trademark while the latter suggests using the mark as a substitute word for bowling balls. While this may seem absurd, many famous brands have fallen into this trap including YO-YO, ESCALATOR, and COUCH. The issue is, as demonstrated by these examples, that when tradmarks are used as nouns, they can lose their ability to indicate the source of a product to consumers.

Second, trademarks should stand out. It should be clear to consumers upon review of the products and services that the associated trademark is a source designator. The trademark should not blend into the background or go easily unnoticed. Factors to consider are size, placement location, font, coloration, style, and the like.

Third, trademarks must be used in association with goods or services to sell those goods or services. Mere reservation of a domain name, placement of a word on an email signature, forming a business entity, or creating business cards is not consider use under the law. Instead, use is specifically defined as putting the trademark on the goods or related packaging (for services on the advertising materials detailing the services) and selling those goods to consumers.

Fourth, trademarks should be consistently used. For example, trademarks should appear essentially the same between product markings, packaging, tags, and website pages.

There are obviously many more potential considerations with respect to trademark selection, protection, montioring, and usage, but these primary considerations are always present.

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