08 Apr Decoding Intellectual Property Symbols
We see the symbols of intellectual property protection everywhere in our daily lives. But, how many of us actually know what they mean and how to use them? By decoding intellectual property symbols and learning how and why these symbols are used for brand protection, you are taking steps toward becoming a more savvy business owner and consumer.
Registered Trademarks: ®
A small ‘R’ in a circle is used to indicate registered trademarks. In general, the symbol is used immediately following the mark that has been registered with the U.S. Patent and Trademark Office (USPTO). This symbol lets the public know that the brand name, company name, logo, or other distinguishing mark has been registered with and approved by the USPTO.
Although the primary function of the ® symbol is to communicate that a specific brand mark has been legally trademarked, it serves many other functions as well. For example, ® serves a brand protection function by helping a trademark avoid becoming generic. Think about the brand name “Kleenex.” At the start, this brand name was protected by its trademark registration. However, over time, the public started using the word to mean tissue in a more generic way. The public’s use of the brand name ended up eroding its trademark protection. In order to avoid a trademark becoming generic, it is important to use the ® symbol every time that the brand mark appears. Another function of this symbol is to make it harder for third parties to claim ignorance of your mark if an infringement matter arises. By using the ® symbol, a business is better able to protect its brand from potential infringement.
As an experienced intellectual property firm, we often notice companies using the ® symbol after their brand name or logo without actually filing for trademark protection. Not only can this be possible trademark infringement of another mark, it is also possible that the USPTO will use the unauthorized use of the ® as grounds to reject a trademark registration application in the future. They can do so because using this mark without permission is technically a violation of federal law.
Unlike the registered trademark symbol, ®, ™ is a symbol that is used when a brand’s marks have not been registered with the USPTO. Business owners are welcome to use this symbol before they file for trademark protection with the USPTO. In fact, business owners who own unregistered brand marks (like company names, product names, logos, etc.) should absolutely use this symbol. Just like the ® symbol, use of this symbol puts the public and other companies on notice that you are asserting the mark a source identifier and intend to register the trademark for your product or brand.
Service Marks: SM
Service marks are a lot like trademarks. However, there are slight differences. Business owners who own valuable brand assets should take the time to know the difference. A trademark is any name, image, or even sound that represents a good. When a consumer looks at or hears this mark, he or she knows immediately the source of the good that they are about to consume. However, not all businesses sell goods. Many businesses, including The Brand Protected®, sell services. A service mark is any mark is that is used to identify the source of a service. Again, when a consumer interacts with this mark, he or she knows exactly who or what will be providing the service they are about to receive.
The symbol SM works in exactly the same way as ™. It is used to indicate that a particular brand intends to be identified by this mark (in this case, the mark identifies a service), but it also communicates that the company or business owner has not yet received approval from the USPTO to use the ® symbol.
Copyrights are the intellectual property protected extended to works of original authorship. These can include writings, photographs, works of art, audio recordings, and so much more. As we have discussed before on this blog, copyrights are owned as a matter of common law. That means that, even without registering an original work with the US Copyright Office (USCO), an author/creator automatically owns any work that he or she creates. However, an author or original creator cannot generally enforce his or her ownership of an original work or receive statutory damages without having registered the copyright.
The use of the © symbol is generally found with two other pieces of information: the name of the original creator and the year that the work was first published. You have likely seen this “copyright notice” before: © 2021 John Doe. This copyright notice, including all three elements (the symbol, the date, and the name), used to be required by law to maintain copyright protection of an original work. However, works created after 1989 no longer are required to publish this copyright notice. Use of the copyright notice is optional, but it might be beneficial.
Just like other marks that indicate an intent to assert intellectual property protections, the © symbol lets the public know that copyright is claimed by the creator of the work. This may help avoid any argument that a copyright infringer may have that they somehow were not aware that the work was subject to copyright protection. A full copyright notice, including the name of the author and date of the work’s publication, can also help identify the copyright owner and the term of the copyright.
Patent Pending: Pat. Pending
Many items that we interact with every day have this mark somewhere on the object: Pat. Pending. This symbol lets consumers know that the manufacturer has initiated the patent application process and that, as soon as the item is patented, the creator can enforce patent infringements lawsuits against anyone who attempts to recreate the patented item. Before we dive too deeply into the “Pat. Pending” mark, we should first clarify what kinds of articles can be patented. A patent is the intellectual property protection reserved for inventions. Patent protection, held by the inventor or creator of the article that is being patented, means that no one else is permitted to make, use, offer for sale, or import the specific article for twenty years.
Pat. Pending is a mark that can only be used once a patent application has been filed with the USPTO. Once the patent application is approved and the patent is granted, the manufacturer will stop using the mark “Pat. Pending” and instead use the specific patent number that the invention has been assigned. Again, like the ® trademark symbol, the Pat. Pending symbol is used to put would-be copycats on notice that the patent application has been filed and the manufacturer will be able to legally enforce its exclusive right to produce the article once the patent has been granted.
The language and symbols that surround this area of law can be confusing. All business owners, creators, and entrepreneurs should take the time to educate themselves about how best to protect what you have created.