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Guide to Brands of the IP Frontier

08/09/2011

The Bar Lazy J. The Long X. The Flying Crown. These famous brands still stir images of the Old West. Sizzled on the hides of livestock, the hallmark of a good brand was that it was instantly identifiable and difficult to alter. A good brand says, “This is mine, back off!”

Brands and brand protection are still important in the New West: the IP Frontier. Just survey your chuck wagon (pantry) or the aisle of any Kroger or Costco, Pardner, and you’ll see what I mean. So here is your guide to the Brands of the IP Frontier.

© This brand denotes the owner claims copyrights in the material on which it is used. A copyright notice consists of the copyright symbol, followed by the year the claimed work was first published the name of the copyright claimant, e.g., © 2011 Moye White LLP. Prior to 1989, the failure to use this brand usually caused an otherwise copyrighted work to be lost to public domain. Not so since 1989, when the United States became a full signatory to the Berne Convention. However, since not all countries are Berne Convention members, use of this brand is still a good idea if you don’t want your copyrights to be rustled.

TM The brand ™ is an unofficial notice that the word(s) and/or design on which it is affixed is considered a trademark. Because ™ is an unofficial brand there are no rules governing its use. By custom the small capital letters ™ are typically used as a superscript or subscript immediately adjacent to the material claimed to be a trademark. While the use or failure to use ™ carries no legal weight or penalty, it is effective in drawing attention to a claim of common law trademark rights, particularly when the claimed mark might otherwise not be recognized to be considered proprietary, e.g., The Little Bakery™.

SM This more rarely seen brand, an abbreviation of “service mark,” serves the same function as ™, except most people haven’t a clue what it means. The correct usage of SM to demonstrate that one knows the difference between a product and a service might warrant a gold star from a trademark professor. But since service marks are subsumed within the definition of “trademark,” and the whole point of IP branding is to provide notice, this wrangler thinks anyone who uses SM is a sissy.

® This brand connotes that the owner has registered its mark with the United States Patent and Trademark Office. The recovery of damages under the Trademark Act is dependent upon its consistent use. Conversely, using the registered trademark symbol without having an actual trademark registration is consumer fraud and can be the basis for denying an application for registration. A surprising number of registered trademark owners incur the time and expense to obtain the right to use this legal brand and then never do. Given the powerful legal presumptions accorded to the owner of a United States trademark registration it is the opinion of this IP wrangler that someone who owns a federal trademark registration and fails to use the official registration symbol is plum loco.

Patent Pending

Let’s get one thing straight: patents don’t pend. You either got a patent or you don’t. Now that we’ve settled that, the Patent Act does allow someone who’s filed a patent application to mark their inventions “patent pending” to indicate that a patent application is pending. But woe unto the varmint who uses the brand “patent pending” if a patent application isn’t actually pending. The false use of “Patent Pending” is prohibited by federal law.

Reg. U.S. Pat. Off.

This here brand means “Registered United States Patent Office,” and should be followed by a patent number. A U.S. patent allows a patent holder to prevent others from making, using, selling, or leasing inventions covered by the patent. This particular brand is required by the Patent Act to recover damages under the Patent Act.

Them’s the brands of the IP Frontier. Use them properly to protect your intellectual property herd and be respectful when you see them used by others.

For assistance protecting your brands, call on the experience of Moye White’s Intellectual Property Group
-- dedicated to “Riding for your Brand.”

ABOUT THE AUTHOR

Charles F. Luce, Jr.

Attorney