Also, what’s the rule on trademarks? (In the USA, anyway.) Can I use a trademark as long as I note who its a trademark of? Or do I have to ask permission to use the trademark, and then if given permission, am then required to note whose trademark it is? Or do I have to ask permission, and it is up to the discretion of the trademark holder whether I must note whose trademark it is?
Er wut?
-FrL-
Sorry that was poorly edited. In your imagination, please remove “Also,” capitalize “hat’s,” and change the title to something more appropriate.
Use in what context?
IANAL, but I’ve had some experience with both copyright and trademark law in the course of running a publishing business for the last ten years.
Trademarks are different from copyright in many respects. Copyright gives the holder the exclusive right to copy the work in question and restricts everyone else from making copies in all but a few situations (e.g. fair use).
Trademark gives the holder the exclusive use of the mark in commerce, in association with certain products or services. It restricts everyone else from offering similar products or services under the same name. However, it is possible for the same mark to be used by different companies engaged in different businesses, if the new use isn’t likely to cause confusion in the marketplace. For example, I can’t sell a software under the trade name Microsoft, but if I invented a line of small beds for pets, I might be able to register the name Microsoft for that business. In practice, the Redmond company would probably make it difficult for me to do that, but that’s because they have what is known as a “famous mark.” But I digress.
Trademark law does not prevent you or me from saying the word, or writing it, or using it in most other situations. If you’re writing an article, book, blog, or Web site, you don’t need permission to refer to a trademark, nor are you obliged to use the ® or [sup]TM[/sup] symbols.* In commercial situations (e.g. an ad for your own product) it might sometimes be wise to get permission, although I doubt it is strictly necessary. Note all the ads that explicitly compare themselves to a competitor’s product. But it would probably be a good idea to use the symbols in that situation.
If you’re in a formal partnership with the trademark holder, you will probably be required to get permission and to use the ® symbol.
If I’m wrong about any of this I’m sure a lawyer will be along shortly to correct me.
*The distinction between the ® and the [sup]TM[/sup] symbols: [sup]TM[/sup] is used after a mark has been submitted to the US Patent and Trademark Office while its approval is still pending. The ® is used after it has been approved and is now “registered.”
But the reason you have to be told about them is so that you know you’re not allowed to use the trademark to sell your own goods. Companies can’t build a quality reputation for products if consumers can’t tell by the trademark that that company made the one they are buying or the one they bought that doesn’t work.
The only detail commasense left out is that a trademark is properly an adjective – it’s used to describe the product itself.
Thus, strictly speaking, there is no such things as a Kleenex; there are only Kleenex tissues (or, more properly Kleenex brand tissues.)
So, a trademark is a descriptive term used by a company to differentiate its product from a similar one made by a different company.
To some extent, though, I’m puzzled as to why companies are irked by their products’ names being used casually: it means that they (the products) are common enough that the brand name alone, with no other identifiers, is sufficient for communication. As far as I know, Google has (wisely, IMO) not raised a stink about ‘google’ being used as a verb or in the phrase ‘google-fu’ (though I’m not sure how common that one is).
Ask Nabisco. Ask Bayer.
These are all examples of what happens if a trademark become common use. Nabisco, for instance, marketed Shredded Wheat as a cereal. As long as it was a trademark, they were the only people who could make Shredded Wheat was Nabisco. Other cereal makers could make things like it, but, with people wanted Shredded Wheat, Nabisco was in charge.
Then shredded wheat became a common term. Now anyone can make shredded wheat cereal and cut into Nabisco’s sales.
It’s the same with Bayer and aspirin (except in Canada).
I doubt Google would be very happy if Yahoo started saying, “google your answers as Yahoo.” They’re willing to let it be a verb, but once someone started using it in conjunction with another web search, they’re going to get mean real fast – and quite possibly their lack of defense of the trademark would be their undoing.
The problem here, though, is that a term may fall into “common usage.” If enough people say that they used a Kleenex to clean up the blood from a paper cut they got while Xeroxing a document, and then put a Band-Aid on the cut, the companies who manufacture Kleenex brand facial tissues, Xerox brand xerographic copiers, and Band-Aid brand adhesive bandages are going to lose the right to exclusive use of their brand name, opening the door to Scott Tissues manufacturing kleenex, Mita producing xerox machines, and Curad selling band-aids. For obvious reasons, the three trademark holders would object to that. This is the main reason why they police the usage of their products, and “housewives” in TV commercials improbably tell their friends about how wonderful “Glad brand sandwich bags” are.
kunilou, I believe that that practice, insisting that the mark be used only as an adjective, is not required by the law, but is a result of one or more high-profile cases in which well known trademarks were lost because a court determined that they had become part of ordinary language. Perhaps someone can remind us which case(s) they were, but IIRC, the issue seemed to be that the transition from proper noun to plain ol’ noun (i.e. ordinary word) was perceived as being too easy a step. Trademark holders countered by insisting that their marks never be used as a standalone noun (or verb, like “xeroxing”), but only as an adjective modifying the generic term for the product. Presumably, this prevents the unwashed masses from appropriating the valued trademark into the vulgate, so to speak. (Of course, in the real world, trademark holders can have no more influence over living language than prescriptivist grammarians. Only in the case of the latter, among whom I count myself, do I add, “alas.”)
Whether this was a directive of the court, or simply the solution the trademark holders inferred, I couldn’t say. But I’d be interested in hearing more about how the distinction was arrived at.
Okay, I see. The problem for them isn’t so much people using their trademarked product names as common nouns in conversation, as it is that event leading to rival companies using that product name on their own products. Thanks!
Believe it or not, there’s actually an International Trademark Association, with everything you’d ever want to know.
I’ll note this from their FAQ:
It may not be required by statute, but the trade association certainly defines a trademark as an adjective.