If lawyers ruled the world™, it® would™ look™ LIKE® this©

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Here is a brief story about trademarking® and how it applies to healthcare marketing™. If the lawyers had their say, every® single™ word™ WOULD BE® littered with little markssmall over our beautiful marketing programs®. Why? When we’re talking millions or billions of dollars in brand equity, it pays to be cautious and to bare your legal teeth to possible infringers. But is there a happy medium? Yes, there is. First, though, some definitions. Courtesy of the US patent and trademark office and stopfakes.gov

What is a trademark? A trademark is a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.

What is a service mark? A service mark is a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of a service rather than goods. The term “trademark”??? is often used to refer to both trademarks and service marks.

What is a copyright? A copyright protects works of authorship, such as writings, music, and works of art that have been tangibly expressed.

What’s the difference between a trademark ™ and a registered trademark ® ? You can put ™ on whatever you want to trademark. This is letting the world know that you own this bit of intellectual property. No search or filings are necessary and generally the first person to use it is the right holder. As a matter of fact, you do not even have to use the ™ mark at all because, “You can establish rights in a mark based on use of the mark in commerce, without a registration”??? according to the USPTO. This means that using it in commerce automatically establishes the right. So why even use a TM or an SM? See legal teeth comment above. Registration has several key advantages and if you’ve spent a couple of billion developing a great new biologic or medical gadget, spring for the $325 fee.

What are the benefits of federal trademark registration? Owning a federal trademark registration on the Principal Register provides several advantages, including:

1- Public notice of your claim of ownership of the mark
2- A legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration

3- The ability to bring an action concerning the mark in federal court

4- The use of the U.S. registration as a basis to obtain registration in foreign countries

5- The ability to record the U.S. registration with the U.S. Customs and Border Protection (CBP) Service to prevent importation of infringing foreign goods

6- The right to use the federal registration symbol ®

7- Listing in the United States Patent and Trademark Office’s online databases.

Just because you registered the trademark does not mean you should use the symbol indiscriminately and on every single occurrence of the trademark. It looks horrible, distracts from the message you’re paying a designer to create, and creates anxiety and loss of appetite (possibly). Let’s all agree to use trademark notation like this: Use the trademark notation on the first occurrence as it appears on the piece. If the first occurrence is a headline, then place the mark symbol at second occurrence.

Then NO MORE MARKS! OK? Problem solved. At least in the USA. There is a whole website about international trademarks




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