Guide to Display of Trademarks and Trademark Notices 101
Trademarks are words, symbols, designs or slogans that identify the source of origin of good and services marketed in commerce. Continuous association of the trademark with the goods and services of the owner builds goodwill through increased customer recognition and repeat purchases of the goods or services. With consistent use and proper display of the trademark, the brand becomes more valuable.
In order to qualify for federal trademark registration, a mark must be used in interstate commerce. The trademark notice that identifies a federally registered trademark is the symbol ®, typically displayed after the words, design or slogan constituting the trademark, in the upper right-hand corner, in the lower right-hand corner or level with the mark or design itself. The notice is used to advise the public that a trademark or service mark is federally registered and 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.
The symbol TM, displayed in the same position as the registration notice, is used to identify trademarks that are unregistered. It is frequently used to indicate a claim of common law trademark rights in the mark, as a notice of the claim to others.
Sometimes the symbol SM is used for marks displayed in connection with provision of services. However, many countries outside the U.S. do not recognize this symbol. Therefore, companies doing business internationally may wish to use the TM and ® symbols on marks used for services as well as for goods.
1. What Constitutes Good Trademark Use and What Is Not Trademark Use?
For goods, such as clothing, books, cars, food, equipment and the like, trademark use is established by displaying the mark directly on the goods, on a label or tag attached to the goods or on packaging for the goods, such as the box in which the goods are placed.
For services, however, trademark use is shown by displaying the mark in connection with advertising the services, e.g. in promotional brochures and flyers or on a website. It is not good trademark use to display a word(s) or slogan to merely describe a product or service. For example, if a real estate agent selected the mark “Fabulous Properties”, it would not be good trademark use to advertise in promotional materials “We offer fabulous properties.”
2. Display of a Trademark Should be Consistent and in the Form Registered
The purpose of use of trademarks is for the promotion of the owner’s goods and services. As noted above, trademarks for products serve as brands affixed directly on goods or on their packaging.
Trademarks should be displayed in a prominent or emphasized manner, such as in a heading, in a different, enlarged, stylized font or in bold, so they stand out as trademarks identifying services or goods. Trademarks should not be used as common descriptive words in plain text.
It is not necessary to display the trademark notice every place the mark appears as long as the notice is displayed prominently with the mark at least once on the page. Once a trademark is registered, the burden is on the trademark owner to affix sufficient trademark notices to the mark to provide notice to the public.
The appearance of the mark, as it appears in marketing materials, on a website or directly on goods or its packaging should be consistent and in the form registered, in order to best build goodwill (i.e. customer recognition and loyalty) in the mark. For example, once a font style is selected to display a word mark, it should always appear in that font style. If a mark is registered in stylized form, the mark should always appear in that stylized form.
3. Trademarks Registered in Color
If a mark is registered in color, it should be displayed in the color registered, and not in a different color every time it appears. When color is a feature of the mark, changing the color to a different color when the mark is displayed is an alteration of the registered mark and weakens the strength of the mark, making it more difficult to enforce the mark against an infringement.
If a choice of different colors is desired (for example, to be able to show the mark against a background color of a promotional piece or website page), then it is important to register the mark without a color claim, enabling use of the mark in any color. With a “no color” claim, colors can be varied in promotional materials and on labels and packaging in the case of goods. However, for purposes of building goodwill, it is best to at least stick to a consistent color scheme in displaying the trademark. If the mark appears at different times in all the colors of the rainbow, it starts to serve as more of a decorative rather than a trademark function. For example, the logo for Coca Cola appears always in red. If it appeared in red sometimes, blue sometimes, etc. it would dilute the distinctiveness of the mark.
The above guide is intended to provide basic information on the topic of proper display of trademarks and trademark notices. This issue has additional aspects that may be applicable depending on a particular business or type of goods and services offered. Review of this guide alone, is not intended as legal advice for any particular individual or to establish a lawyer-client relationship. Consultation with a trademark attorney is encouraged prior to use or application for registration of a trademark.