A Sign of the Times - Your Name Does Matter!
It’s a jungle out there. Did you know that in 2018 over 12 million trademark applications were filed worldwide?
If you are in the planning stage of a new product or service or are an early stage startup it is imperative to get a basic understanding of trademarks and how to finalize a name. You can avoid the pitfalls that many other businesses have fallen victim to by getting informed.
One of the first steps that you need to take to safeguard and protect your brand’s identity in today’s fast-paced global market is to register its trademark.
What is a Trademark?
A very basic definition of “trademark” is a sign, design, or expression which is recognizable and identifies products or services of a particular source.
In fact, a trademark can be a word, logo, letter, number, slogan, color or even a smell! The impactful, golden arched letter M of McDonalds is a trademark, and so is the infamous Nike swoosh. They are qualified by the symbols placed after them by the trademark owner and this allows the general public to understand the status of each mark.
Three Trademark Symbols
Here is a brief overview of the three symbols used globally today - ™, SM and Ⓡ. The following four extracts have been taken from the leading world authority on trademarks - the International Trademark Association (INTA) and can be found on their comprehensive fact sheet:
What does the symbol TM mean?
The symbol TM is used to provide notice of a claim of common-law rights in a trademark. A TM is usually used in connection with an unregistered mark, to inform potential infringers that a term, slogan, logo or other indicator is being claimed as a trademark. Use of the TM symbol does not guarantee that the owner’s mark will be protected under trademark laws. The owner may continue to use TM should registration of the mark be refused.
What does the symbol SM mean?
The symbol SM functions similarly to the symbol TM, in that it is used to provide notice of a claim of common-law rights in a mark; however, it is used in connection with a service mark, covering services, such as banking or legal services, rather than tangible goods. Use of the SM symbol does not guarantee that the owner’s mark will be protected under trademark laws.
What does the symbol ® mean?
The symbol ® is a notice of registered ownership used in many countries or regions to advise the public that a trademark or service mark is registered and to provide constructive notice of the legal ownership status of the mark with which it is used. The ® symbol should be used only in connection with registered trademarks or service marks. In the United States, use of ® may be instituted only after registration of the mark is granted. Use of ® with an unregistered mark may result in claims of fraud where the owner demonstrates intent, knowing and willful misuse, and attempts to deceive or mislead consumers, or in other difficulties for the owner in trying to obtain and/or enforce its trademark rights.
How should the TM, SM or ® symbol be used?
There is some flexibility as to how and where to use the TM, SM or ® symbol. Typically, it is placed in the upper right-hand corner, in the lower right-hand corner, or level with the mark or logo itself—each is an acceptable way of displaying the appropriate symbol. While there is no specific requirement regarding where these symbols should be used, most often they are placed adjacent to (or, in the case of a design mark, in) the upper right-hand corner of the mark, in superscript (raised) font. Example: COCA-COLA®. The TM, SM or ® symbol need only appear with the first or most prominent mention of a mark in all documentation, such as press releases, articles and company reports.
Get more guidance on which symbol you should be using to make your mark count.
Fail to Plan Prepare to Fail
It may be hard to believe but many startups fall at the first hurdle when it comes to trademark registration. Many a namestorming session has taken place with the sole emphasis on googling and domain checking. As soon as an available domain is identified the business swoops to secure it and then starts to build its product or service around this name. However one of the very first steps that you should take is to also check your potential names against those already registered as trademarks in your territory. You will be able to see instantly if the exact same name is already being used by other companies in your region(s) of interest.
International Trademark Clearance
If your business is planning to export its products or services beyond its domestic borders (even if this is only in your business plan) it is advisable to think even more carefully about choosing your trademark at the planning stage. Trademark clearance in the international territories that you are considering is a vital part of any business strategy. You should also seek the assistance of a trademark lawyer at the clearance stage.
The length of time that it takes from trademark application to registration varies in each country or territory. A quick online international trademark search will tell you whether your trademark is identical or similar to any others that are already registered. Your trademark attorney can help you to assess the level of risk involved in moving forward with your proposed mark or they can advise whether you should abandon it altogether and start over.
Get Professional Advice
In addition to carrying out your own research it is vital to seek the assistance of a trademark professional to make sure that your mooted mark does not infringe on any third-party rights or national trademark laws. You will require a legal opinion in order to avoid a potential lawsuit.
Otherwise you could find yourself wasting precious time and money and even face an adverse judgment for damages down the road that your business can ill afford.