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Protecting Your Brand Name The Easy Way

By Edited Nov 13, 2013 1 1

While applying for federal registration of a trademark is relatively costly and time consuming-it typically takes 12 – 18 months and usually costs at least three thousand dollars by the time you are done with search fees, registration fees and attorneys' fees-many business owners do not know that you acquire common law rights in marks simply by using them in commerce.

In trademark law, simply by being the first to use a mark in commerce, you can establish a common law right to the mark that you can enforce in federal court if you use the mark in connection with selling the goods or services across state lines. Generally, if you only have common law rights to a trademark (meaning you were the first to use the mark in interstate commerce but you did not federally register it), you can only exclude others from using the mark in the geographic area that you have been using your mark. On the other hand, federal registration gives the trademark holder certain substantial benefits that make it much easier to enforce and win large damage awards in court, including attorney's fees. And, if you used your mark and federally registered it first, federal registration confers on you the exclusive nationwide right to use the mark. It should not come as a surprise that the law rewards those who quickly register their marks and limits the protection for those marks that are unregistered.

However, for many people who are on short of funds but still want to do something to protect their mark, they can use the informal symbol TM (which stands for trade mark of a good; or SM, which stands for service mark, if you are providing a service), which indicates that you are claiming trademark rights to use that particular name or logo without having to register the mark or even having filed an application to register.

Let's say you are offering your services as a nutrition expert/counselor under the name Daily Dose. Because you are providing a service, nutrition counseling, you'd use the SM symbol whenever Daily Dose is used in connection with its services, such as promoting or advertising your counseling services online or in print, or whenever you use the mark Daily Dose in connection with rendering those services, such as on a handout at an event that you are speaking at or tabling.

You place the SM symbol to the right of the trademark, in superscript and slightly above the mark. You don't have to use the symbol every time you use the mark in the ad, webpage, document, etc., just in the first, or most prominent place it's featured, and the first time that the mark is used in the text. If you have several different sections on separate pages, you should repeat the symbol the first time the mark appears in the text of each section.

Of course, using the TM or SM symbol does not provide any statutory legal benefits (that's why you might consider talking to a trademark attorney about applying to register the mark), it simply warns any would-be copiers that you're already claiming the name or logo as a mark.



Nov 9, 2010 7:01pm
interesting stuff.
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