[Cwilk]

I recently had a discussion with another artist on LogoSauce regarding trademarks and the proper use of the 'tm.' Unfortunately most artists have heard that it becomes copyrighted once you design it. For the most part, that is true. But copyrighting and registering a trademark are totally different things. Just because you created it doesn't always mean it is copyrightable. Common art, shapes or geometric shapes are not copyrightable. The LOC won't copyright these things because no one is allowed to have ownership of a checkmark or a circle; you get my meaning.

Now trademarks are a totally different story. You register a trademark to have ownership of the company name and a specific identity.

According to the US Patent & Trademark Office:

Is registration of my mark required?

No. You can establish rights in a mark based on legitimate use of the mark. However, owning a federal trademark registration on the Principal Register provides several advantages, e.g., constructive notice to the public of the registrant's claim of ownership of the mark; a legal presumption of the registrant's ownership of the mark and the registrant's exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration; the ability to bring an action concerning the mark in federal court; the use of the U.S registration as a basis to obtain registration in foreign countries; and the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.

(MY NOTES: Basically what they're saying in the paragraph above is that, if Artist 1 designs a logo identity and doesn't intend on registering it as a trademark but uses the TM anyways, and Artist 2 designs an identical logo and actually submits it to the USPTO and pays to register it, it legally belongs to Artist 2 because they registered the ownership of it. So just because you put a TM on it, that doesn't keep your competition from stealing it out from underneath you. If something like this ends up in court, Artist 1 would have to show usage and a creation date well before Artist 2 in order to prove ownership. Unfortunately though, that might not be enough. The moral of this is, if you put a TM on a logo, make sure you have the rights to do so and make sure you intend to register it to prove ownership.)

When can I use the trademark symbols TM, SM and ®?

Any time you claim rights in a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim, regardless of whether you have filed an application with the USPTO. However, you may use the federal registration symbol "®" only after the USPTO actually registers a mark, and not while an application is pending. Also, you may use the registration symbol with the mark only on or in connection with the goods and/or services listed in the federal trademark registration.

(MY NOTES: Now here's where it gets sticky with the law. If you in fact use the TM on a logo/identity you've designed and it is similar to a logo or name that has already been registered as a trademark by someone else, you may have just infringed on the copyrights of that other company. So be very careful where you use the TM.)

Hope this clears up some of the copyright and trademark confusions.

By Christina Wilkinson