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What's the Purpose of a Trademark

LEGAL DISCLAIMER: The following information is provided to be just general information, and therefore, should not be taken as specific legal advice that pertains to any particular situation.  The reader should not base any decisions on the information here to act or refrain from acting regarding a legal problem.  If you believe you have a legal problem please seek legal advice from a licensed attorney in the relevant jurisdiction.
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So it’s amazing how time flies when you have a lot of work to do.  I have been very grateful for these past couple of months for the clients that have come through my door (or via electronic means), but more work means less time for blogging and sharing information to all you interested soon-to-be or current business owners.

Anyway, as some people know I was fortunate last month to attend the American Bar Association’s Annual Conference in San Francisco.  I attended many Intellectual Property, Business Law, and a couple of Employment Law seminars.  When I can, I will update my blog or provide one-sheet resources on the information I obtained from these seminars to share with all of you.

So today’s post is about the use of trade and service marks.  A prior Draw the Law post covered the difference between a trade name and trademark and I have a one-sheet on What is Trademark?.

Purpose of Marks

Before we get to the using of a trademarks, let’s first consider that the purpose of a trademark.  The point of a trademark is to distinguish one company’s set of goods and/or services from another company’s.  Basically, it is meant to avoid confusion to consumers, so they can readily ascertain from the mark which company the goods and/or services are originating from.

So How are Marks Used in Commerce?

A mark can be used on goods (products), which would make it technically a “trademark”.  Specifically, this would mean the mark is applied, engraved, embroidered directly on the goods, POS displays, the use of labels or tags affixed to the good, or shipping labels when sending the goods through commerce.  It is not just merely advertising, but must have a Point of Sale component.

In the case of a mark used in connection with services, clearly there is no tangible part to a service.  Therefore, service marks are found on websites, brochures, advertising (but not printer’s proofs), on or at locations associated with the services, such as vehicles used with the service, or on the uniforms of employees while they perform the service.

How do I Properly Use my Trademark?

You can use ℠ for service marks, ™ for trademarks, and registered trademark symbol (the ‘R’ that has a circle around it) ONLY for registered marks (it is a violation of the law to use the registered symbol when your mark is NOT registered).  Further, the mark should be distinguished from regular text, through the use of quotation marks, larger print, all capital letters, or through colorization of the wording.  Also your grammar lessons are important for trademark usage.  A noun should ALWAYS follow a mark.  The mark should NEVER be used as a verb.  For example, it is a XEROX copier and NOT xeroxing. Or perfect for the web as another example, it is NOT you googled the answer, but it is rather you ran a GOOGLE search.  Finally, the correct spelling should be used and moreover, the mark should not be pluralized.

The point of all this proper usage is to avoid a loss in rights in the mark.  Many trademarks of famous brands have become generic, and generic terms are not entitled to trademark protection.  Consider that the word “escalator” used to be a registered trademark, but the Otis Elevator Company has lost that mark due to it becoming generic.  Therefore, you should be actively policing your trademark usage and avoid losing rights that you worked so hard to create with your brand.

That’s it for this time.  I hope to be back soon with more information to share.

Mahalo for stopping by!

-RKH

 

 

 


Aloha Everyone!

Hope you are having an awesome Friday for this last aloha Friday of 2011. I just wanted to take the time, as I close out for the day to wish you all a happy and safe New Year’s Eve and for a start of a good New Year. In addition, I would like to thank all my friends, acquaintances, clients, readers, supporters, and yes even my Twitter followers for making 2011 a good start for me.

Storytelling in 2011 

I appreciate getting to know you all in the various settings that I have and welcome meeting new people and reconnecting with old friends whether it be in social media, IRL networking, or for coffee. Also thank you for allowing me to tell you all my story and journey of an attorney that loves the intersection of law, business, and politics in the realm of small business and startups.

Past Highlights 

I would like to highlight thanks to all of you for the positive feedback regarding this site and my services. In particular, I would like to continue to make this site a place a resource for small businesses and startups navigating transactional and compliance issues. Thus from this 2011 you will continue to see posts series like the following:

Because I care about the Hawaii community and am finding that I meet new people of this great state via social media I will continue to do special write-ups on:

New Features for 2012 

Although like all good growing businesses, their ideas change and grow I will be rolling out new features and ways to get information into struggling business owners’ hands. In fact, I’ll admit that being an attorney who just started going solo there were times I wish there were resources for me, and there were, but I will continue to try to deliver information to the people who want its and need it. I would like to thank various people and organizations that have given me feedback before I talk about my 2012 features.

First the Thank Yous

Thank you to my friends at Off-Menu Catering, all of you give so much support and thoughtful feed back to carry me through continuing to serve small business.

Thank you to The Greenhouse: Innovation Hub and in particular Doc Rock (@docrock) and John Garcia (@johngarcia) for creativity and inspiration, Jill (@swamwine) of SWAM, Danny (@wangchungs) of Wang Chung’s, and Shawn of Small Business Planning Hawaii (@SBPHawaii) for bouncing ideas off of to deliver services and information to small business owners. Melissa Chang (@Melissa808), Jennifer Lieu (@jlieu), and Capsun Poe (@capsun) always guiding lights for social media use.

Mahalo to the Young Lawyers Division, HSBA, and Leadership Institute for providing guidance to an attorney.  To fellow attorneys Wayne J. Chi and Scott C. Suzuki thank you for doing talks with me, some more planned in the future! To William (@alohastartups) of Alohastartups.com, much thanks as you are providing a great resource for startups in Hawaii and I am excited for the plan in 2012. However, I think I still owe you a post from 2011! Thanks to Rechung (@TheBoxJelly) of The Box Jelly for providing a space for legal talks and helping Hawaii coworkers.

Finally, thank you to Marcus Landsberg, a fellow Hawaii attorney that has helped out and set down this path of being a solo practitioner like me and showing that solo does not mean alone.

. . . Back to New Features of 2012

Ok, enough with the thank yous and let me get to the new features that you readers can look forward to from me in 2012 for this site in particular:

  • PODCASTS – that’s right Hawaii small business owners, no worries if you cannot make it down to one of my talks! I will be providing portions of them for you to watch in your store or at home.
  • One-sheets – simple pdfs talking about one particular issue for you to download, print, and share.
  • Newsletter – I am not sure what the frequency will be, but definitely watch your e-mail inboxes!
  • REVAMP of blog and website – I will be shifting gears and making sure that I deliver to you content in a more user-friendly style!

That’s it for this year! Have fun and be safe this New Year’s Eve and see you in 2012 (Year of the Dragon!).

-RKH