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Growing Together Winter 2020

Legal Corner: What’s in a Name?

April V. Pearson, Corporate Counsel


Do the terms trademark, copyright and patent confuse you? Not to worry, even some lawyers struggle with the concepts.

Patents follow inventions. Trademarks are used with brand names and slogans. Copyrights protect things like novels, films and software. Trademarks may be registered (filed with the US Trademark Office) or simply used as a brand name. Registered marks earn the ® while all others are denoted with TM. Using TM tells the world that you deem the brand name to be proprietary. Registering the tradename allows you to sue others to stop similar or conflicting use.  And, your brand name may be both a word and a logo – think Coca-Cola®  .

Trademarks help to define your brand and build name recognition. Trademarks should always be used as an adjective modifying the generic (noun) term for the product. For example, write “Buy KODAK® cameras” not “Buy KODAK®.” The trademarked word should also be different from the surrounding text such as all capital letters, use of quotation marks, or use of a distinctive typeface.

Here are some guidelines for protecting your trademark/brand name:

  • A trademark is a proper adjective and should always be followed by a generic term (such as “iPhone mobile phone”).
  • A trademark should not be pluralized.
  • A trademark should not be used in the possessive form.
  • A trademark should not be used as a verb (such as I “googled” that term).

If you noticed that some of those examples are cumbersome or out-of-sync with everyday speech, you caught the irony and can see how easy it is for a company to lose its uniqueness.

Trademark rights can be lost if the trademark becomes generic in use. Examples of former trademarks that became common day words include “aspirin”, “escalator”, “cellophane”, “shredded wheat” and “thermos”.  Distinguishing the brand is especially critical for a unique product or one that is a shorthand description of the product. Velcro Corp has a funny video about its trademark “for (bleeping) hook and loop fasteners” which proves that some lawyers have a sense of humor. #dontsayvelcro

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