A trademark is a symbol, sign, or other signifier used to uniquely identify a service or product in connection with a certain brand, company, person, or other legal organization.
In this article, we’ll take a look at a few different facts about trademarks and try to clarify some of the commonly misunderstood aspects of registration, use of TM and SM, and the origins of trademarks themselves.
1. Trademarks are different from copyright and patents.
A copyright is a type of intellectual property protection that applies to works that carry “unique authorship” and have been “fixed in a tangible medium.” In other words, copyrights are eligible for images, videos, songs, sound recordings, architectural works, and other works – but ideas are not eligible for copyright protection.
Some types of works, including logos, may be eligible for both copyright and trademark protection. However, the scope of these protections are different: a copyright protects the unauthorized use or distribution of an image, while a trademark protects the way the image is used in connection with a service, product, or brand. Trademarks are inherently commercial, while copyright may not be.
A patent is a type of intellectual property protection that applies conventions, novel processes, or new inventions or discoveries. There are three types of patents: design patent, utility patent (the most common type), or plant patent.
2. You can use TM or SM without officially registering a trademark.
Yes, you read that right: official trademark registration is not required in order to use TM or SM! (SM, of course, stands for “service mark,” a special type of trademark used to signify services rather than products.)
While an official federal registration is the best way to protect your trademark, some amount of protection is also offered to unregistered trademarks, depending on the location and industry of that unregistered trademark. To signify to the public that you are in fact using the sign or symbol as a trademark, TM or SM is appropriate.
However, take care that you do not use the (R) symbol – this symbol is reserved for officially registered federal trademarks, and using (R) without having officially registered is against federal law.
3. A trademark must be used commercially in order to truly be a trademark.
In order for a word, phrase, or another signifier to be eligible for a trademark, it has to actually be used to signify something (or you must have plans to use it to signify something in the future). Without a public, commercial use, there’s no trademark.
4. A lawyer is not required in order to apply for a trademark.
If any third party website, company, or law firm tells you that you must use their services in order to apply for a trademark, run away! They are not being honest with you.
That said since the trademark application can take up to two years to be processed, legal counsel is highly recommended. Without one, you may inadvertently make a mistake on your application (which contains a lot of details and technical requirements), which could lead to your trademark application being dismissed. For these reasons, it may be a good idea to hire professional trademark assistance.
5. Trademarks originated in ancient times.
Back in biblical times, blacksmiths and other makers of fine craftsmanship needed a way to indicate the origins of their blades. They began stamping their own unique symbols into their wares, which helped the public to recognize a certain artisan’s wares as well as keeping the artisan’s reputation in tact and protected from shoddy imitations – just as trademarks are used today.