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Written by : Craig Chevalier
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he Forks today we're going to be talking about trademarking and specifically trademark symbols it sounds like it's going to be a bit boring well you could be right there but this is important you should know about trademarking when it comes to your brand and your logo so let's make a star and let me take you through each of the three main symbols so the first is the TM symbol sometimes known as the common law mark the TM symbol is used to make people aware that you are claiming rights on your trademark unlike a registered trademark which we'll discuss later on in this video a common law trademark can be harder to protect and that's because there's no public record of when the trademark was first used next up is the SM symbol now this isn't as commonly used as the TM symbol but it stands for service mark so if your brand offers services such as banking or legal or even design services you should be using the SM mark the TM symbol is much more widely recognized though and so I would suggest that you use the TM symbol over and above the SM one next up is the R symbol unlike the previous two symbols the TM and the SM the R represents an officially registered trademark you may only use the R symbol if you have registered your brand or your logo with an official trademark body if you go ahead and use the R symbol with unofficially trademarking then you could run into claims of fraud where you knowingly or willingly attempt to deceive or mislead consumers or try to prevent another brand from registering a mark which is similar or the same as your own if you have the budget to do so I would always say go ahead and officially register your trademark so what about when it comes to actually using the symbols on your logo worship the goal well in the mean peep we'll put the logo in the upper right-hand corner next to the logo it can also go in the lower right-hand corner or it could go inline with your logo or brand name there is no right or wrong it can actually go anywhere around your logo but you do want to have it in a sort of an unobtrusive way if you know for a fact that when you're having your logo designed you will be officially registering it let your designer know because they'll then be able to take that into account when you're creating the logo design so that the TM or the registered trademark symbol will be more balanced in the design okay so a quick recap you don't have to be using the TM or SM symbols to make common law rights claims to your trademark when it comes to the registered trademark symbol that little R in a circle you must have an officially registered trademark to use it and lastly let your designer know if registering that trademark is something you intend to do because they'll then be able to take that into account when they're sketching conceptualizing and create the final little design by knowing in advance they'll be able to incorporate that little symbol into your logo to give an overall better balanced and visual look to the final design it's at this point I should stress that trademark law is very complex you should always seek the advice of a trademark lawyer who can take you through the process and make sure that nothing is missed you don't want to go ahead and register your trademark and make a mistake so that someone challenges it you end up losing so there you have it that's a little bit more information for you on trade marking symbols not the most exciting of topics I know but it is something that you should know when it comes to branding I hope you find this video useful if you have make sure you give the video a thumbs up please leave me a comment let me know if you've actually been through the trade marking process yourself if you haven't already so scrape to the channel and make sure you click on that little bear icon to be notified whenever I release a new video and until I see you next time stay creative folks
Thanks for your comment Fredrick Suchocki, have a nice day.
- Craig Chevalier, Staff Member
hi john hess from filmmakeriq.com a recently lindsay ellis who runs a wonderful youtube analysis channel released a video called product placement and fair use in this one though I feel else might have painted too bleak a picture about what is allowed in the depiction of brands in their to filmmaking now since this question does pop up a lot and I have an obsession with the philosophy of IP laws I felt compelled to make this short IQ bits now I am NOT a lawyer but I did stay at a Holiday Inn Express one time and I took one summer class in business law with a professor that got me hooked on the subject matter I'll make this disclaimer again at the end but when it comes to intellectual properties judgment is based on specific application it's a matter convincing a judge on the merits of the details of your specific case so the real answer to every legal question on intellectual property is it depends now first let's clear up the definition of intellectual property which of which there are three kinds copyright which we did a whole history of video copyright covers artistic expression from books to visual arts music and motion picture the duration of protection is currently life plus 7 years or 90 years if commissioned as a work-for-hire in the United States then there's patents which cover industrial processes design patents only lasts for 14 years after they are granted utility patents can last a maximum of 20 years if the maintenance fees are paid on time and finally there's trademark the subject of this video as defined by the Lanham Act in 1946 a trademark is any word name symbol or device or any combination thereof used by a manufacturer or seller to identify and distinguish his or her goods including a unique product from those manufactured or sold by others and to indicate the source of the goods even that source is unknown think unique names think graphic logos sound cues even slogans like think different trademark unlike the other two categories of IP do not have an expiration date so long as the company uses the trademark and protects it a fair use is the defense that bounces freedom of speech with the interest of the intellectual property rights holders in patent law there is no such thing as fair use at least right now in copyright fair use is reserved for commentary education criticism and so forth the vast majority of content online regarding fair use is talking about fair use and copyright so let's skip ahead well--we're sit-in is trademark fair use which is not talked about as much as copyright fair use a copyright protects expression the power of Congress to protect copyright and patents is directly stated in the Constitution trademark on the other hand stems from the Commerce Clause is to ensure that businesses can mark their goods and services and that consumers can understand where their goods and services are coming from so trademark protection is less concerned about granting exclusive right to trademark holders that is about promoting efficient markets by giving consumers truthful information now because trademark carries a lot of information about a product essentially in shorthand it is extremely useful in communication especially entertainment to bridge the gap between the real world and the fictional one so if the use of a trademark even if it's unauthorized use does not interfere with the trademarks of function in the marketplace and there is a public interest like the First Amendment freedom of speech issue at hand the courts generally favor public interests before diving into issues of First Amendment let's look at two kinds of fair use defenses regarding trademarks when dealing with commercial speech or advertising classic or descriptive and nominative classic or descriptive fair use pops up when a trademark is being used for ordinary descriptions of a product or services in KP permanent makeup Inc versus lasting impressions Inc in 2004 a permanent makeup company advertised micro colors described their product even though micro colors is a trademark of another product in the same category that was ruled not infringing because micro colors was used in the descriptive sense another example is sun mark Inc versus Ocean Spray cranberry Zink from 1995 Ocean Spray labeled their products as sweet tart which is descriptive of the product and not infringing on the trademark of sweet tart candies made by son mark nominee fair use is when you use a trademark not to describe your product but to refer to the actual product or service associated with that trademark for a nominative trademark fair use you would need the following conditions the use of the trademark must be accurate not misleading or defamatory the use must not imply any endorsement there is no easier way to identify the product and you only use the bare minimum that is required to identify the other trademark this often means you refer to it by name and not with a logo but not always this allows forms of competitive advertising where they actually mention the competitors brand name instead of saying the leading major brand this also allows a car repair shop to use the Volkswagen brand saying they are tooled to work on Volkswagens even if they are not officially an authorized Volkswagen service shop there's even a case involving a former Playboy Playmate where the court ruled that she could use the trademark Playboy described herself on her own website but these are the rules generally applied to fair use in commercial speech a film is not commercial speech it is protected speech under the First Amendment since the Supreme Court case Joseph Burstein incorporated V Wilson in 1952 and in a culture where brands are part of daily life and carry so much meaning the ability to mention brands by name is a necessity for free speech since 1988 a test called the Rogers test has begun formulating to determine if an unauthorized use of a trademark is entitled to First Amendment protection or if it is a trademark infringement although the Rogers test is still somewhat confusingly applied and not all Circuit's adopt it in the same way it is at least a groundwork for understanding this balance between protecting the rights of trademark holders and the rights of artists to their free speech the Rogers test comes from the case Ginger Rogers V Alberto Grimaldi Alberto Grimaldi and MGM distributed the 1986 Frederico Fellini film ginger and Fred a movie about people and Amelia - Italian cabaret performers who pretty much resembled Fred Astaire and Ginger Rogers Ginger Rogers claimed that the film violated her Lanham Act trademark rights her right to publicity and was a false light defamation the court decided with Grimaldi noting that the movie only tangentially related to Astaire and Rogers and from that decision a two prong test began to develop the first test does the use of the trademark in question have artistic merit truthfully this is a pretty low bar to pass in the case of Fred and Ginger the title has artistic merit because it is the nicknames of these cabaret singers it lends the film and era sophistication in class it has something to do with the story if it had
Thanks Raleigh your participation is very much appreciated
- Craig Chevalier
About the author
I've studied military education and training at Baylor University in Waco and I am an expert in mastery learning. I usually feel drunk. My previous job was windows - draperies treatment specialist I held this position for 10 years, I love talking about astronomy and art collecting. Huge fan of Elton John I practice luge and collect brands.
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