Question

Topic: Strategy

Confused About Trademarking

Posted by Anonymous on 5/3/2012 at 8:03 AM ET 250 Points
Can some please clear up a few confusions about the trademark process?

Questions: Can you put an (SM) or (TM) symbol on anything and unexclusively claim it as your own? I know when you register it, you have sole rights to that name, phrase, etc.. Can a (TM) symbol used on something that is waiting to be registered and in the process? Does the (TM) always come before the (R) symbol? Other than https://www.uspto.gov, is there a place where you can surely find out if a certain name is trademarked?

I am just confused about where and when you can use the (TM) and (SM) symbols. A legal person told me you can slap those symbols on anything and they mean nothing.

Thanks much!
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RESPONSES

  • Posted by Jay Hamilton-Roth on 5/3/2012 at 8:31 AM Member
    Start by reading https://www.nolo.com/products/trademark-trd.html
  • Posted by Andy Fracica, MBA on 5/3/2012 at 9:43 AM Accepted
    Cricksart,

    As a personal example, I trademarked the logo for my company, for a couple of reasons. The first of which was because I wanted to go to the process to see how it worked from start to finish because I might offer that service to customers. Second, was I felt that it added more legitimacy to company. The third was because I didn't want anybody to use what I had created. Granted Fracica Enterprises, Inc. is unique enough that only my cousins could use the Fracica name, but when you see the (R) there is a sense of legality to a trademark.

    Granted that even once registered, it gives you the right to defend it, and things that come into play is the date of first use in commerce. So somebody could contest the mark but if you can prove that you have been using it long before they came up with it, they really don't have much of a case.

    You can use your mark for years before you register it. Once you go through the registration process you can add the TM to your trademark. Once registration is approved you can switch it out for the (R).

    I worked for a company that never registered the trademark name of their products. Eventually I convinced senior level management that it made sense to register the trademarks, and we were able to go back and show that we had been using those marks for over 10 years. Should anybody try to contest our mark they would have had to prove they used it before we did.

    Also, when your register your trademark, you can only protect it for the categories in which you register the mark. For example, I could use the name Oreo on a new car as long as the trademark holder has not registered it in every category possible, which most likely they haven't.

    I hope that helps.

    Andy
  • Posted by Gary Bloomer on 5/3/2012 at 6:23 PM Accepted
    Yes, it's my understanding that a (TM) symbol can be used on something that is waiting to be registered and in the process.

    Yes, it's also my understanding that the (TM) always comes before the (R) symbol.

    Read more here: https://www.uspto.gov/smallbusiness/trademarks/faq.html

    Here's how to register a trademark in the United States:
    https://www.uspto.gov/smallbusiness/trademarks/registering.html

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