You see them everywhere, but why do people use them and what do they mean?
Last time, we discussed the ™ and the time before that we discussed the © . Now, it’s time to move on to the ®, which as many of you may or may not know, also signifies a trademark. Again, a trademark is a word, name, phrase, symbol, sound, or even color that identifies and distinguishes the source of goods.
Let’s recap what that means in plain English!
From last time…
Okay, so there are a couple of parts to this. It looks like anything can be a trademark from that long list of things that they have in their definition. That is sort of true as long as it “identifies and distinguishes the source of goods” – which we will get to what the heck that means in a bit. Some examples of trademarks: that apple with a bite out of it on your Mac, the roar of the MGM lion before the next movie you watch, the name “Kleenex,” or the phrase “I’m lovin’ it” for McDonald’s. All of these different things are trademarks.
Now for the second part – it has to identify or distinguish the source of goods. So, you come up with a sick drawing of a little alien dude. You could register a copyright for that drawing, but you can not register a trademark for it at this point. Then you decide that you are going to put this little alien drawing on your craft ginger beer…which you give away to friends at parties. Still not a trademark. Then your friends LOVE IT and tell you “dude! you gotta sell this at the farmer’s market!” So, you do. You start selling your Alien Ginger Beer at the local farmer’s market.
NOW you can trademark the little alien guy in connection with your ginger beer. Why? Because people will associate the alien with your COMPANY and with your PRODUCT. When they go to Whole Foods (once you scale your product because of high demand), they will scan the shelves looking for your alien guy and will recognize your ginger beer because it has the alien on it.
You are ready to break out of your local market. You want that distribution deal from Whole Foods. Now, you might be ready to graduate from a ™ to an ® .
So, what the hell is the difference between the two and why should you care?
Like with our copyright examples, MONEY.
The ® means that you have registered your mark with the United States Patent and Trademark Office (USPTO). Once you register your trademark with the USPTO, you will be entitled to statutory damages if you prove that someone has violated your trademark. You will also be entitled to attorneys fees, which can really add up, so it helps you to enforce your rights if you know you can get reimbursed for those costs. Also, by registering your trademark you show any potential buyer, licensees, joint-venture partners, distributors, etc. that you take your product seriously enough to: 1) protect it and 2) invest in its future.
So, you can slap your ™ on there as soon as you start selling it. If someone rips off your brand (intentionally or not), you can try to stop them but you probably cannot try and collect money from them.
You can’t slap that ® on there until you register it with the USPTO. Once you register it, if someone rips off your brand (intentionally or not – sometimes it is completely innocent), you can try to stop them, you can try and collect money from them, and there are other options available to you as well.
There are a whole lot of reasons to start thinking about your trademark early. So, if you think that you’re ready to graduate from your farmer’s market, or if you have questions and want to talk to a Lawyer-Human about it – feel free to schedule some time with us or shoot me an email at firstname.lastname@example.org.