You’ll See Things You Never Did Before

Whenever I am talking to someone about their trademark, the topic of using a TM or ® comes up.  First, which should one use?  Second, when should they use it?  The first question is easy.  If you have a federally registered trademark on the mark being used, then the ® is for you.  Everyone else gets to use the TM.  State registration = TM; no registration = TM; federal registration differs from mark used = TM.

The second is a little harder.  The easy answer is use it whenever you use the mark to be seen by consumers in connection with your goods and services.  The point is to let others know, “Hey, this is my trademark!  Whenever you see it, you know it is coming from me.”  So using it liberally makes sense.  It lets customers know what they should look for when trying to buy your stuff, and it lets your competitors know that you are claiming rights in the mark.  After all, it is difficult for someone to say, “But I didn’t realize they thought of it as their trademark” if it has a TM or ® next to it.  But using it 100% of the time may not be desirable.

Perhaps it messes with your meticulous design, or it is against industry standard. Or maybe it is just plain ugly.  What to do?  I always give the same piece of homework to start, and this is where I am about to change how you look at the world.  Spend a day or so and actually look at all of the products and services that you come into contact with throughout your day.  Check out your coffee cup, magazine (both the covers and all that is inside), wallet, and so forth, right down to your shoes and car floor mats.  How often do you see a TM or ®?  Now compare that to how often you noticed them before this assignment. For example, look at the beer glass above.  See that little red ® on the left next to the little red bike? Yeah, they are everywhere.

All of the sudden, the theories regarding “but it messes with the design” often dissipate.  It lets you see the forest of TMs and ®s instead of your one little tree. If you notice, however, no one in your industry uses it in certain ways (e.g. it is often not seen on catalog front covers), then maybe it is OK to let it go.

Each time you decide if you should designate your trademark, think about the purpose of informing others of your claim to the mark.  Then, weigh that against the reason you don’t want it on there.  If your reason for leaving it off is stronger than informing customers or competitors about your ownership of the mark in that particular place, then leave it off.  If, however, you want to make sure those “others” know this is your mark for these goods and services, then put it on and console yourself with the fact that, in spite of what Mom said, sometimes it is OK to do what everyone else is doing.