Use It or Lose It – How Trademarks Affect Your Website and Business

You see them everywhere: the little ™ and ® symbols on brand names, logos, and taglines. Do you really know what they mean?

As a business owner, you should. Trademark law can be your friend—and can also get you in trouble. Here’s a primer on what trademarks are, how to use them on your website, and how to stay out of trouble. As usual, none of this constitutes legal advice; consult an intellectual property attorney for specific legal questions.

Trademarks: The Basics

As mentioned previously in this space, trademarks are simply words or symbols that businesses use to identify their brands. In the U.S., trademarks can be registered with the U.S. Patent and Trademark Office (USPTO). Registered trademarks can carry the “circle-R” ® symbol and have nationwide scope. Registering a trademark gives its owner incontrovertible evidence of ownership and gives the owner the right to sue alleged infringers in federal court. Registering a trademark involves submitting an application and paying a $275 fee. Once the trademark approved by the USPTO (a process that takes about six months), the owner must renew the registration to keep it current.

Marks that are used in the normal course of commerce, but are not registered, can carry the ™ symbol. Such trademarks are subject to “common law” rights, which generally means that the scope of a mark’s protections is limited to a specific geographical area, usually a state or a small number of states where goods bearing that trademark are sold. (For services, the service mark symbol SM is used instead.) Your rights to protection of your trademark are much more limited if your trademark is unregistered.

There’s a certain panache associated with having a registered trademark—that circle-R symbol tells the world you are a real, serious business, and it serves notice to potential infringers that the law will come down hard on them if they aren’t careful.

Protecting a Trademark

Trademark infringement happens when another business uses a mark that is substantially similar to yours in a way that can intentionally or unintentionally cause confusion among consumers. There are no “trademark police” out there scouring the marketplace for trademark infringement; it is up to you, the trademark owner, to identify infringement of your trademark and bring legal action against the alleged infringer. It is also up to you to prove the infringement in court.

One of the issues the court will consider is how diligent you are in protecting your trademark. It is not enough merely to keep your trademark registration current; you have to show that you have taken active steps to protect it. Some registered trademarks, such as Aspirin, Escalator, and Linoleum, were deemed in court to have lost their legal protections because their owners did not adequately try to protect them.

If you do business nationwide, you should consult an intellectual property attorney about whether to pursue registration of your trademarks. At the very least, you should consider common law trademark protection. Keep in mind that protecting your trademark means using it consistently on your site (consistent spelling and capitalization and limited variation in shapes and sizes of icons and logos), using the proper trademark symbol, and being vigilant for potential infringement.

Using Others’ Trademarks

If you are going to mention or display trademarks that are owned by others, the best practice is typically to acknowledge the ownership of those trademarks. Usually this means that you use whatever symbol (™ or ®) is appropriate for the mark, with a note somewhere indicating the ownership of the mark, such as “PowerPoint is a registered trademark of Microsoft Corp.” Although not strictly required in every instance, it’s a good idea as a simple courtesy to the owner, especially when there is any chance that your use of someone else’s trademark might be construed as an attempt to infringe. Otherwise, you might get a nastygram from some law firm asking you to stop.

Although there is some complexity in U.S. trademark law, securing a trademark is an essential part of establishing your brand and an important part of your overall business strategy.