A trademark is a word, name, symbol or device, or a combination of them, adopted and used by someone in business in order to identify their goods and to distinguish those goods from the goods manufactured or sold by others. A service mark is used to identify services rather than tangible products. A trade name is the company name or its abbreviation under which business activity is conducted. For example, COCA-COLA and THE COCA-COLA COMPANY are trade names when used to reference the company. However, COKE, COCA-COLA, COCA-COLA CLASSIC, DIET COKE and COCA-COLA ZERO are trademarks or service marks when used on or in connection with goods and services to identify those goods or services as being from a single source. Trademarks also function as a symbol of the integrity of the trademark owner and as an assurance to the purchasing public of the consistent quality of the article or service bearing the trademark.
In order to keep your trademarks strong and distinct you must be vigilant and follow these guidelines:
Always use the trademark as a proper adjective, not a noun. Whenever possible a trademark should be followed by the common descriptive name (noun) of the product it modifies. (“APPLE computer;” “TIVO digital video recorder.”) This should be done at least the first time the trademark appears in printed material. The word “brand” may also be used to reduce the possibility that the trademark will be thought of as the generic name for the product, or a line of products. When used, the word “brand” should always appear in small print. (“LEVI’S brand jeans;” “NIKE brand running shoes.”) A trademark should not be used as a common descriptive adjective nor as a verb. (Incorrect: “Please XEROX this report.”)
A trademark should be used in a manner which will distinguish it from the surrounding text. Capitalize trademarks completely (PIZZA HUT), use initial caps with quotes (“Pizza Hut”), use italics, bolder-faced type, different font, or a different color to create distinction. (Pizza Hut) At a minimum use initial caps (Pizza Hut). The generic product name (pizza, shoes, jeans, computer) should not be capitalized.
A trademark is not the name of a product and therefore it cannot “possess” anything, such as attributes. (Incorrect: “The MARRIOTT’s advantage is in its service.”) Only the generic product which the trademark modifies can possess anything. (Correct: The MARRIOTT hotel’s advantage is in its service.”) Likewise, since a trademark is not a noun, it should never be used in the plural form. (Incorrect: “Try our NOKIAs” or “Our NOKIAs are the best”. Correct: “Try our NOKIA cell phones” or “Our NOKIA brand cell phones are the best.”)
Where practical a trademark notice should follow the mark. Notice should generally be used at least once in text and preferably with the first or most prominent appearance of the trademark. If a trademark has been registered in the U.S. Trademark Office, the ® federal registration notice should be used (McDonald’s®) on goods and services in the U.S.. If the trademark is not federally registered, use the common law notices “TM” for a trademark (GALLO™) and “SM” for a service mark (NEST PROTECT℠). Alternatively, or as a supplement to the ® or common law notices, a footnote or text notice with one of the alternative statutory notices is good practice: “WINDOWS is a trademark of Microsoft Corporation. Registered in U.S. Patent and Trademark Office” or “WINDOWS is a trademark of Microsoft Corporation. Reg. U.S. Pat. & Tm. Off.”
When used as a trade name to refer to your business, a mark may be used alone as a proper noun. However, when used as a brand in connection with a product or service, your mark should be distinguished from the words surrounding it and preferably followed by reference to the generic product or service that it modifies, consistent with the above referenced guidelines.
The strength and distinctiveness of many trademarks has been lost due to improper use of the marks in advertising and promotion, sometimes referred to as “genericide.” This loss occurs if consumers perceive a trademark not as identifying a product from a single source, but rather as a mere description of the nature of the product or as an identification of a product type or product category as a whole. When a trademark no longer identifies a product from a single source, but is used to identify a category of like products, that mark is generic and available to all to use to describe their products. Some examples of common brands that are generic or come close to the generic line are ASPIRIN, ESCALATOR, KLEENEX, BAND-AID, YO-YO, THERMOS and WINDSURFER.
In order to avoid genericide it is important to be vigilant in the proper use of your company’s trademarks.