A trademark is “a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of good of one party from another.” The primary policy underlying trademark law is to protect consumers from confusion and prevent the use of misleading tactics by competitors.
With the recent advances in social media, many consumers now demand an interactive experience with their favorite brands and companies. While the ability to directly reach target markets is clearly beneficial, businesses need to take appropriate measures to protect their brands and to ensure they are not infringing upon the rights of others.
In some circumstances, it might be wholly permissible to refer to a company or a product or service in a review, blog post, or status posting. However, it is not permissible to use the trademarks of others to imply an endorsement or affiliation of any kind.
Rights in trademarks, whether a formally registered “®” or the more generic “TM”, come through commercial use. This means that if you can’t find something via Google or the formal USPTO registry, the mark is likely available for your use.
Also, commercial use of your mark, even if not formally registered with the USPTO and bearing the “®” or registered with your state of business, gives you rights in the mark and provides some common law claims to the mark. The degree of protection needed often varies with the maturity and value of the brand or business and is a great conversation to have with your attorney.
James T. Keig
Stephenson, Sanford, Pierson & Thone, PLC.
The material above is provided for informational purposes only and should not be taken as legal advice and is not the basis for creating an attorney-client relationship. You should contact an attorney for advice on specific legal issues you may be facing.