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Logo Design Copyright

June 6, 2018

What's the big deal with TM & R?

Information within this article should not be taken as fact - do your own research.

What is a trademark? It’s a literal extension of the phrase Marks of Trade. A "TM" protects the name or mark associated with the product or company to which they are attached and can be specific to the the type of activity being carried on (Apple Computers and Apple Auto Glass for example).

The main test of trademark infringement (legally speaking) is whether or not a conflicting mark will confuse consumers (either by accident or design.) A trademark can be a word (real or imagined), name, symbol, color (yup, even colors) or sound, that is claimed and used by a company to identify its identity or products and distinguish them from those offered by others. For all intents and purposes, a service mark is the same as a trademark, but identifies a service.

A trademark offers more protection than copyright - even marks that are similar can be considered infringement - but the bar is set much higher for registered elements. More expensive too - filing a trademark usually requires the services of an attorney, unless you’re a persistent DIY, then it is possible to complete most of the process. A trademark can take up to a year to be granted, and costs, at a bare minimum, about $300 for the necessary paperwork.

Types of trademarks

When it comes to developing a name for your company or product there are 4 main types of trademarks you should be aware of. I'll cover fanciful, arbitrary, suggestive and descriptive company names as they relate to trademarks.

Fanciful Trademarks

A fanciful trademark is a made-up name, created for the sole purpose of functioning as a trademark, and has little meaning other than the name of a company or product. Think Xerox, Verizon or Kodak as examples. Fanciful trademarks are considered the strongest trademarks and it’s very difficult for your competitors to claim they were accidentally influenced by your name.

Arbitrary Trademarks

Arbitrary trademarks use words that have some very-real meaning, but when used in the context of a company name, don’t really offer any clues to what the company does, or what the product is (there might be some abstract, or creative way that the name does offer a description – Google, for examples, is an actual word that describes a really, really big number). An arbitrary mark may still be a strong trademark, unless a number of other companies have adopted similar names in other fields. A classic example of this would be the name Acme (from the greek word meaning the peak, zenith or prime) and used famously to identify the various companies that supplied Wile E. Coyote gizmos, used in the endless pursuit of his nemesis, the Roadrunner, during Saturday morning Warner Brother cartoons.

Suggestive Trademarks

These type of trademark names might hint at some quality or character of the company or product represented without actually describing the product. If they’re available (ie: not in use by someone else) suggestive marks can be relatively easy to receive a trademark for. Trouble is, suggestive trademarks can be difficult to protect, as they come awfully close to descriptive trademarks, which run the risk of not being protectable at all. The Logo Factory is an example of a suggestive trademark. The Logo Design Studio would be an example of a similarly themed descriptive trademark, much more difficult to register, and difficult to protect if someone did manage to get a TM in the first place.

Descriptive Trademarks

These are names which describe, in absolute terms, a characteristic or quality of the company and/or products for which they are used. This is the least desirable of all trade names – in fact, most descriptive TMs are generally considered non-registrable and unprotectable by most courts. In the internet age, many people are tempted – for search engine keyword density – to name their company in absolute terms. Athletic Shoe Sales for example, might offer some search engine advantage if you were to own the domain AthleticShoeSales.com. Unfortunately, it would be extremely difficult (if not impossible) to register the TM and avail yourself of trademark protection. Your competitors could quite literally use your name to further their business. Not such a good idea, huh? If you’ve come up with a company name that is absolutely descriptive in nature, time to hit the drawing board again.

Using a TM in a logo

"Should I use a TM in our logo design?" is a question that comes up often during most of my design projects. The answer is, yes, no, maybe. If you have the rights to use a TM in a logo, for example you’re laying claim to the trademark, either as a design like the Nike 'swoosh' or for the name "Nike" itself – then yes, adding a TM is probably worth while.

Here's where the maybe comes in. If you have a legitimate claim to the TM, you don’t have to put the little T & M beside your spiffy new logo to protect it. And while adding a TM to a logo indicates you are in the process of registering a trademark, it also might be interpreted that you have not been awarded it just yet. After all, if you registered the name and/or mark, your logo would feature an R in a circle which is only permissible to use if you officially registered with the government. That may get your competitors thinking that they can poach your TM turf.

That’s about it for trademarks and how they relate to your new company name. Granted, a little ‘dry’ but ultimately worthwhile stuff to keep in mind when asking yourself the basic question – "what do I name my company?"

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