When it comes to brand names and logos, trademark symbols go with the territory. But as often as corporate communicators and designers use these designations on packages and printed marketing materials, many are not sure why one is, at times, used in place of another. This primer simply provides definitions and is not meant to tell you how to conduct a trademark search or apply for registrations

What is a Trademark?

A trademark is the brand identity (a word, phrase, symbol or design, or any combination thereof) that distinguishes a company's product or service. A logo can be trademark but not all trademarks are logos. A TM symbol is used to indicate a claim of ownership to the logo or brand name and typically appears with the trademark on products or packaging.

What is a service mark?

For all practical purposes, a service mark is the same as a trademark, except that it promotes branded services and events. The SM designation usually appears next to the brand name or logo in advertisements for the services.

Why are some logos and brand names followed by the ® symbol?

The ® indicates that the trademark is registered with the U.S. Patent and Trademark Office.

How does a trademark differ from a copyright © or a patent?

A copyright protects an original artistic or literary work; a patent protects an invention.

Who is allowed to use the TM, SM and ® symbols?

Anyone who claims rights in a mark may use the TM (trademark) of SM (service mark) symbols with their brand logo. It is not necessary to have a federal registration or even a pending application to use these designations. The claim may or may not be valid. On the other hand, the ® registration symbol may only be used when the brand mark is registered in the U.S. Patent and Trademark Office.

Are there federal regulations governing the use of TM or SM designations with trademarks?

No. However, the use of the TM or SM may be governed by local, state or foreign laws. These designations usually indicate that a party claims rights in the mark and are often used before a federal registration is issued.

If a federal registration is not mandatory, why do it?

Federal registration offers several benefits. It provides a legal presumption of ownership nationwide and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration. The jurisdiction of federal courts may be involved if anyone tries to infringe on these rights. Federal registration also can be used as a basis for obtaining registration in foreign countries and may be filed with the U.S. Customs Service to prevent importation of infringing foreign goods.

What is meant by Patent Pending?

It means that the U.S. Patent and Trademark Office has received an application for registration and issued a serial number for tracking the pending patent. Generally, an applicant will receive an application receipt approximately six months after filing. All future correspondence with the U.S. Patent and Trademark Office must bear the assigned tracking number. The total time for an application to be processed may range from a year to several years depending upon the basis for filing and the legal issues that may arise in the examination of the application.

What is meant by a collective mark?

This is a mark used to show membership in a union, association, cooperative, or other types of organizations. Essentially it is a group's logo.

What is a certification mark?

This is a seal, symbol, name or device used by a respected entity or organization to vouch for the authenticity, quality or soundness of a product or service provided - e.g., the "Good Housekeeping Seal of Approval" or the "ISO 9002" rating. Other examples are marks that certify that a product comes from a renowned geographic region such as Wisconsin cheese or Napa Valley wines.

What is trade dress?

Along with a brand name or logo, a product may become known by its distinctive packaging - e.g., Kodak's yellow-and-black film box, Tiffany's turquoise blue gift boxes. Service entities such as retail or restaurant chains may be recognized by their distinctive decor or architecture. These identifying features are commonly described as "trade dress" because they function like a trademark in distinguishing their goods and services in the marketplace. Trade dress can be protected under the federal trademark laws and, in some cases, registered with the U.S. Patent and Trademark Office.

Is a business name a trademark?

Although the name a company goes by is often called its "trade name," it is not considered a trademark or entitled to protection under trademark law. However, if a business uses its name to identify a product or service it produces, the name will then be considered a trademark and be entitled to protection if it is distinctive enough.

Since a name is a word, can it be copyrighted?

No. Copyrights are meant to give authors of a creative work - writing, photography, art, sculpture, music - the exclusive legal right to control the copying of that work. Ownership of a name or title is a different matter; it comes under trademark law.

If an original work doesn't bear a copyright notice, can it be used without permission?

No. While the copyright notice - © [date] by [author/owner] - reinforces legal protection, it is no longer absolutely necessary. In the U.S., virtually everything created privately and originally after April 1, 1989, is copyrighted and protected whether it has a notice or not.

How can I learn more about U.S. trademark and copyright protection?

The fastest and easiest way is to visit the websites of the U.S. Patent and Trademark Office for trademark regulations and the U.S. Library of Congress for copyright law.