I’ve searched the fora for the last year and come up with nothing.
I see the [sup]tm[/sup] sign all the time when pertaining to commercial products, but I’m not sure why. I never thought much about it, but earlier I was reading “What does a Martian look like”, and they mentioned “Lego[sup]tm[/sup]logs twice, and I wondered what would happen if they just said “Lego logs” instead.
Could they be sued for not using the trade mark sign, and if so, what’s the reasoning behind it? Are they afraid some manufacturer looking for a name for his product might say"Aha, Lego would be a perfect name for my line of panty hose”.
It wouldn’t of course, but you apprehend my drift, dontcha?
I can only speak for the Trade Mark laws in the UK, but putting TM or that R in a circle jobby ® next to your trade mark is just a means of warning everyone that it is, in fact, being used as someone’s trade mark (whether registered or not), i.e. to indicate the origin of the goods/services in question, and that infringement may lead to a lawsuit from the owners.
It used to be very possible to have two identical trade marks in completely different fields owned by completely different companies - where there was absolutely no risk of confusion. To use your example, nobody in his or her right mind seeing the mark “Lego” on a pair of tights would ever expect it to have originated from the same people who make those toy bricks. Unless, that is, the original Lego people could demonstrate that their mark had become so well-known to the public that they would indeed always associate it, whatever the goods it was on, with their company.
Trademarks [sup]TM[/sup] and service marks [sup]SM[/sup] as well as the older Register mark ® are all used for one simple reason: you can lose your trademark if you don’t vigorously defend them.
This cuts two ways. The owner of the the trademark needs to follow the rules on trademark notification by using the mark in all the right places. This doesn’t necessary mean that it must follow the name in every single case the name is used. That would get ugly. If you go to the Lego website you won’t see the marks after any of the uses of Lego. There are legal disclaimers, though, on the site and the Google search puts an ® after the name: LEGO.com: The Official Web Site of LEGO ® products!
The flip side is whether I need to ensure that I follow their rules and mark their name. The answer is yes. Not only that, there are any number of proper and improper uses. Take a look at this list of rules from the Jacuzzi ® website
Realistically and legally, in everyday speech and writing there is no requirement that the casual user follow these rules and regulations. I can freely talk about jacuzzi tubs. I can put a Jacuzzi into a work of fiction. I can jacuzzisize my bathtub.
But Jacuzzi as a company, remember, needs to vigorously defend its trademark. That’s why it’s lawyers send out a zillion letters each year telling people about these rules, reminding them that Jacuzzi is a registered trademark, and asking them nicely to comply. Unless you are using the term in a commercial sense, as a competitor, a reseller, or a retailer, they don’t need to go any farther, because they’ve done their legal duty.
In a certain sense, this is all a game, because the law understand that no company can police the English language and all its users. But it is a serious game, because companies can lose their trademarks and that often has major economic consequences.
Just as an aside, companies take ads out in magazines like Writer’s Digest to remind writers and editors that some names are registered trademarks. For example, I remember an ad that the Day-Glo® paint manufacturers took out. The ad explained in a rather friendly tone that while anything can be painted with fluorescent paint, there is only one Day-Glo® brand fluorescent paint, and to please respect their trademark. The Associated Press stylebooks are also loaded with this kind of information.
That said, some names have been “genericized”. Aspirin and cellophane are two words that were, at one time, trademarks in the U.S., but have now become generic names. You wouldn’t ask for an ASA or acetylsalicylic acid for a headache, nor would you wrap something in clear plastic. No, you ask for an aspirin or wrap that package in cellophane.
Just to reinforce what has already been said, I have a bottle of Safeway generic acetylsalicylic acid in front of me. Its label says “A.S.A. Acetylsalicylic Acid Tablets B.P. (5 GRAIN) 325 mg”.
I know that Aspirin is still a trademark in many countries, which is why I said “in the U.S.” I also know that cellophane and Saran Wrap® aren’t the same thing. (FTR, my grandmother will wrap fruit baskets and things like that in clear plastic she calls cellophane; that’s what I meant.)
Twenty or so years ago, I worked for a small weekly newspaper with a circulation of probably no more than 5,000 in two neighboring towns in Massachusetts.
I wrote a short piece in which I mentioned tossing a frisbee.
Two or three months later I got a letter from Wham-O or somebody, telling me that I should have written “FRISBEE® brand flying disk.”
Another time I wrote about a styrofoam coffee cup, only to get another letter from a major chemical company informing me that coffee cups aren’t made of Styrofoam® and would I please stop telling the residents of two small southeastern Massachusetts towns otherwise!
Obviously a local newspaper clipper was reporting me.
I do it on purpose now to see if I’ll get letters.
So lemme see does I has this straight; I don’t have to use the Lego[sup]tm[/sup] if I’m casually mentioning Lego blocks on the SD or if I’m writing a novel, but I do if I write non-fiction, or write for a newspaper, or anything else that is meant for wide distribution.
Is that pretty close?
BTW, how do you make the circle with the r in it? I went through all the coding and couldn’t find anything about it.
I’m surprised that companies such as Johnson & Johnson, Rollerblade, Good-Humor-Bryers, Will Vinton Studios, Kimberly-Clark and others don’t hyperenforce trademarks that are often used to represent the type of product as a whole, such as (respectively) Band-Aid®, Rollerblades®, Popsicle®, Claymation®, and Kleenex®. (I realize Claymation® is an animation process and not a product, but it’s still thrown around a lot.)
One of the funniest letters I’ve read regarding trademark misuse is reprinted in Gary Larson’s Complete Far Side. It is something to the effect of “Ineffective Mob Weapons,” and features a mobster saying something like “Not talking, eh? Maybe a few hits with this wiffle bat will change that.” He is holding a yellow bat with holes in it.
Larson then recived a kindly letter from the good folks at The Wiffle Ball, Inc., which informed Larson of the fact that a) The Wiffle Ball, Inc. does not make bats that look like that, b) any reference to WIFFLE® balls or any other WIFFLE® products should have the trademark capitalized thusly, and c) not to use the WIFFLE® trademark again in reference to products not actually manufactured by The Wiffle Ball, Inc.
I side with Larson on this one. “Maybe a few hits with this plastic baseball bat ideal for hitting WIFFLE® Balls with despite the fact that it is not manufactured by The Wiffle Ball, Inc. will change that” isn’t that funny given the options.
(Then again, this is the same man who recieved a letter from an Italian-American group regarding a cartoon he did involving “The Sandwich Mafia,” so who knows?)
Trademark issues are solely the headaches of the trademark owners and people they perceive to be their commercial competitors.
Unless you are the owner of the trademark in question or you are a commercial competitor of the owner of the trademark, you never need worry about these things.
You can use their trademark any damn way you please and you can forget you have ever heard of the ™ and (R) symbols.
It doesn’t matter if you are writing something that is available for commercial or widespread distribution, whether news articles or fiction or whatever. You need never worry about them.
The most they can do is send you a letter, but you may safely ignore these as well. Unless they are accusing you of infringement or dilution or some other actionable claim, they can’t do squat to you.
Exactly. Essentially, the First Amendment trumps trademark law.
It is only in a manufacturing/sales context (and the First Amendment does not apply – note how the FTC can ban misleading ads) that it becomes an issue.
In answer to the original question, trademarks exist specifically so that a company can prevent others from using their brand names and/or product names. If I spend millions convincing people to buy Framjammit brand tachometers, I don’t want some upstart to write “Framjammit” across the top of their tachometers to take away my sales.
Trademarks are specific to market areas, incidentally. In the above example, I couldn’t prevent somebody from selling Framjammit brand monkey chow.
The reason for the letters people are mentioning is that there is a requirement for a company to defend its trademarks. If I did nothing when everyone on the planet used the term Framjammit to mean “tachometer,” I’d never be able to win a trademark lawsuit against a competitor. On the other hand, if I could demonstrate that I’d sent a “cease and desist” letter every time my trademark was misused, the court would more likely smile favorably upon me.
IANAL, by the way, but I’ve defended a trademark or two in my time.
[QUOTE=InvisibleWombat]
In answer to the original question,[q/uote]
Seeing the title of the thread, I had originally planned to go into this stuff, but upon reading the OP, I thought that it seemed he was not asking about trademarks themselves but just about the “TM” marks and such.
It’s not actually so clear. There is an argument that trademark exist primarily to prevent confusion among consumers about the origin of goods or services. Protecting a trademark holder’s property interest is secondary to the consumer protection aspect.
This principle is grounded in the notion of consumer confusion.
There is an exception for “famous” trademarks, like “Kodak,” “Xerox,” “Coca-Cola,” etc., which may give rise to a claim of trademark dilution.
And just to reiterate, unless the person receiving the letter is using the trademark as an identifier for goods or services that he or she is selling, then they may safely ignore such letters.
I wish to once more thank the contributors for pummeling me with information until I’m so exhausted that I just stand there with my arms at my sides and allow the knowledge to seep in. In other words, this thread has admirably done its’ duty.
Oh, and RealityChuck, the idea of deliberately collaborating to produce ‘The world’s worst book’ fascinates me, even though the reviews were uniformly positive, in a sort of shocked and nauseated way. I’ll bookmark it until I get the money. Aside from food, gas, etc. my budget for dreck is alarmingly low this month.