Using Trademark Symbols in Writing: Answering Questions on Use of Trademark and Registered Trademark Symbols in Writing
"Do I need to put a trademark symbol in my writing?"
The purpose of this article is to explain how and when the trademark and registered trademark symbols should be used. The information and support for this article has been gathered from the United States Patent and Trademark Office (USPTO), from the International Trademark Association, and from writing style guides from both academic and business communities.
The quick answer for those in a hurry is: With the exception of certain business writing, you do NOT need to use the trademark, registered trademark or service mark symbols in your writing.
That claim alone may not be comfortable enough for some, and the business writers will certainly need more clarification. So, we’ll examine the different groups as they are impacted (or not impacted) by the use of these marks.
The three main categories of writing concerned with whether or not the trademark or registered trademark symbols should be included in the written piece are:
- Creative writing
- Writing for the press
- Business writing (in two sub-categories)
Each of these three categories will be covered in turn, but before I begin, here is a brief description of the terms for clarity. According to the USPTO a trademark is defined as follows:
A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.
A registered trademark is simply taking a trademark that is in use for a product and officially registering it with the government. Doing so provides a few advantages, but all in all, a business is protected simply by using a trademark and following the guidelines put forth by the USPTO.
A service mark is defined by the USPTO as:
A service mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services.
The SYMBOLS are used to mark that a particular term or image or sound or whatever else IS in fact a trademark or registered trademark or a service mark. (If you need to know how to make the symbols in a document, click HERE.)
It's about "commerce."
With definitions out of the way, the main point of this article is to let writers know that they are off the hook for using a trademark symbol unless they are actually working for the company that sells the product or if they are doing something sneaky working for a competitive company (see the Business Writing section below). The marks and symbols are used “in commerce” to “identify and distinguish the goods of ONE manufacturer” from another. It’s an establishing territory sort of thing. It’s a way for business to establish credibility and brand awareness in their customers’ eyes. The rules that are in play regarding the symbols are between businesses for the purpose of keeping one business from selling something using the credibility built up by another company’s popular or well established product or service.
That is what the symbols are for. They are not for complicating the lives of regular folks writing. They have nothing to do with writing for the most part. But, many might want more than just my word for it, so let’s get to the work of easing your mind about when, where and if you need to use these symbols in your writing.
A really great read, but the author used TM symbols conspicuously, prompting me to investigate for this hub.
Trademark Symbols in CREATIVE WRITING
The short and simple answer to the question “Do I have to use a trademark or registered trademark symbol in creative writing?” is: No. You do not have to use the mark, at all. The entire purpose of the symbols is commercial, or “use in commerce.” Here is the USPTO’s answer to the question: What is "use in commerce?"
For the purpose of obtaining federal registration, "commerce" means all commerce that the U.S. Congress may lawfully regulate; for example, interstate commerce or commerce between the U.S. and another country. "Use in commerce" must be a bona fide use of the mark in the ordinary course of trade, and not use simply made to reserve rights in the mark. [emphasis mine]
Note the “ordinary course of trade” there. While this is leading into the idea about reserving rights for the sake of holding them, this portion of the sentence points out that the purpose of trademarks pertains to the “course of trade.” Not the course of writing and talking about the world in which trade is only a part.
In reading through the USPTO documentation it became completely clear what “use in commerce” means. It’s about protecting the company that comes up with the product or service idea, and it’s about creating a brand name. Notice in the definition of trademark given initially up above they say, “In short, a trademark is a brand name.”
The purpose of that is not to limit your ability as a writer, and you are not violating some law about using someone’s privately owned word by using the name of their product or service in your story. In fact, the Associated Press Stylebook discusses trademarks as brand names, and the entry reads:
When they are used, capitalize them.
Brand names normally should be used only if they are essential to the story.
Sometimes, however, the use of a brand name may not be essential but is acceptable because it lends an air of reality to a story: He fished a Camel from his shirt pocket may be preferable to the less specific cigarette.
Some characters would smoke Camels
Some characters Virginia Slims
Notice they have included Camel cigarettes as an example of crafting more reality to the story. As a creative writer I would just add that, a brand can add character, and you might use brand more often than journalists would. Think of it, the type of character who smokes a Camel is not the same as the type of character who smokes a Virginia Slim.
So, if your story can be made better by having a character use a particular brand of something, you are perfectly within your legal rights to do so, just capitalize it. And you don’t have to get permission from the trademark holder to use it either. In fact, the International Trademark Association (INTA) points out:
As a general matter, it is advisable to obtain the consent of a trademark owner before proceeding with use of their mark. U.S. trademark law, however, does permit the use of another’s mark (whether registered or unregistered) without their consent if the use of the mark is made in good faith for the purpose of merely describing the goods or services to which the mark relates or to accurately indicate compatibility with another’s goods or services. [emphasis mine]
Now, this is actually in reference to businesses using (or omitting) the trademark of another company in process of doing commerce, which is what the first part (the part I did NOT bold) is directly speaking to, however, the part I did put emphasis on translates perfectly well to creative writers because, in essence, writing your character as a Camel smoking person is “merely describing the goods or services to which the mark relates” is it not? Furthermore, under the fair use protections, you get to describe the products that exist in your world, and you get to refer to the trademark companies because they exist. Having a trademark does not remove your ability to ever use a word or a phrase, and it does not in any way require you to use the symbols at all.
So, for all you creative writers out there, now you know. You don’t have to stick the ™ or the ® in your work and mess up the symmetry of your page. As a fellow artsy type, I know the value of white space.
A must-have resource for journalists and, frankly, anyone who writes online.
Trademark Symbols when WRITING FOR THE PRESS
If you are writing for a newspaper or magazine or even a newsletter, you can follow the same rules described above for creative writers, as almost all of that works the same. The only thing I would add for press writers is that, unless you have a very specific reason for using the trademarked term, it is typically better to stick to the “generic” name for the product. If there is no reason to mention Camel cigarettes by name, then “cigarette” will do perfectly fine and, depending on the nature of the article, might keep you from having to defend your position or your facts if you have something nasty to say about them.
If you do need to use the trademark or registered trademark, try to limit it to the first instance and then use the generic term for the rest. For example, you might write, “He took out a Camel cigarette and remarked that it was his favorite,” to open your piece, but simply refer to “cigarettes” from then on out.
However, I could find no reason not to use the trademark name in any of my research, and you do not have to use the symbol at all. The purpose of the trademark symbol is to, quoting the INTA again, “Its purpose is to alert the public to the ownership of the mark, and it is one of the primary ways to affirmatively protect a mark.”
Remember, as I said above, “The whole purpose of the trademark symbol is between businesses. It’s a way for business to establish credibility and brand awareness in their customers’ eyes. The rules that are in play regarding the symbols are between businesses for the purpose of keeping one business from selling something using the credibility built up by another company’s popular or well established product or service.”
Using Trademark Symbols in BUSINESS WRITING
I mentioned in the bullets at the start that there are two sub-categories of business as it concerns the use of the symbols in writing, so I’ll start right in with them.
If your company has a product or service that is trademarked, then you will want to use the trademark symbol. Typically, large companies have writing “style guides” that specify exactly how, when and where to use trademark symbols in writing that is done for the business. (An example online look here: 3Com trademark guidelines.) The INTA website is a resource for scads of corporate style guides. However, if you work for a smaller company, or for yourself, then here are some basics that will help you out:
For starters, you don’t have to use the symbol every time you use the trademark term or phrase or image. Typically, the first instance is fine. If you are writing an article, ad copy or a press release, etc., just put the symbol on the first occurrence of the term. If it’s in the title, fine. If it’s in the opening paragraph, that’s fine too. If you want to use the symbol in the title and in the first use of it in the body text, that’s perfectly fine too. But that’s all you need. The whole point of using it is not some legal fancy thing; it’s just to let your customers and your competitors know that your particular term or image IS yours. You are staking out a claim on that term or image as the brand identity for your particular product or service and that customers can count on it for the unique quality or function that it performs as is only available from your company. Period.
If you use it more than just the first time or two, your writing will look funny, for starters, because having all those little TMs or circle-Rs everywhere gets distracting--plus, ink costs money, ad companies can charge by the word and they definitely limit the number of characters available in your page placement, so why waste money or precious ad space unnecessarily.
Another concern, frankly, is that the piece will look amateurish if it has a bunch of trademark symbols on it. Look around at other advertising and you will notice that they pretty much follow this simple first appearance rule.
Trademarks of Competitor Products
Can you use a trademarked term in something you write about a competitor’s product? Yes. I used a quote from the INTA in the creative writers’ section above, which I’ll place here again:
As a general matter, it is advisable to obtain the consent of a trademark owner before proceeding with use of their mark. U.S. trademark law, however, does permit the use of another’s mark (whether registered or unregistered) without their consent if the use of the mark is made in good faith for the purpose of merely describing the goods or services to which the mark relates or to accurately indicate compatibility with another’s goods or services.
As I am not a trademark lawyer, I am not going to go into this quote any deeper than to say that, if your purpose is to make some sort of comparative comment or “compatibility” feature, you’re fine using the term, and if it’s in a commercial capacity at all, you should use the appropriate symbol too. However, you absolutely can’t use it to make your product seem like the other product, or use it to sell yours as a “substitute” or do anything else that is fraudulent or misleading.
I would be very careful of using trademark terminology beyond this very basic sort of “mention” use, and if your company has a style guide, you better read it. There is a reason people make entire careers out of trademark, copyright and patent law.
So, there you have it. The bottom line is, for almost everyone, you DON’T need to use the trademark or registered trademark symbols in your writing. It really is for advertising and commercial use, to create branding and make awareness of a company’s commercial “turf.” If you’re with a company, then protect your turf and use the symbol. If you’re not, and you’re just writing about an object or service that exists in your world that happens to be a brand name product, that’s fine, just write about it. You aren’t competing against it or trying to steal it or gather fame or fortune by pretending to have some association with the product officially. So, you’re fine. Skip it.
- Trademark Manual of Examining Procedure (TMEP) - 6th Edition
This is where all the info is, the trademark manual itself, via the U.S. Patent and Trademark Office (USPTO). Most of my quotes above come from chapter 900 "Use in Commerce."
- International Trademark Association
This link takes you straight to a source for answers to questions you might have if you are looking at trademarks and using trademarks. A great resource, and one that I found because the AP Styleguide actually lists it too.
- Copyright.gov good description of fair use
This is a government site that briefly but neatly covers the essence of Fair Use in copyright law. It illustrates how there isn't an absolute definition, but lines out well what there is as established by precedent.
- Lanham Act, New York Common Law, and General Business Law
This site has the full text of the Lanham Act, which addresses fair use (among other things) in writing.
- Patent and Trademark office News - The New York Times
News about the Patent and Trademark office. Commentary and archival information about the Patent and Trademark office from The New York Times.