©, ™, ® - When, Why and How to Use ThemDarity Wesley
November 8, 2011 — 1,144 views
Man was born to be rich, or grow rich by use of his faculties,
by the union of thought with nature.
-Ralph Waldo Emerson
These little symbols may look small on the printed page, but they speak volumes in the world of business law known as intellectual property. They protect trade names and created works.
™ and ® are the formal designations of a trade name. The definition of a trademark by the U.S. Patent and Trademark Office (USPTO) is “a word, name, symbol or device that is used to indicate the source of the goods and to distinguish them from the goods of others”. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product.” What’s the difference between at ™ and a ®? USPTO states that “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 However, you may use the federal registration symbol "®" only after the USPTO actually registers a mark, and not while an application is pending.”
For example, when I decided to protect my use of the term Privacy Gurus®, I had to publish the term as Privacy Gurus with the ™, while I filed my registration application with the federal government. When I received the registration certification from the USPTO, which took about a year from the time I first submitted my application, I was then able to use Privacy Gurus®, indicating that it is a federally registered trademark. I also wanted to use the term PrivacyGurus (one word) but had not used it in commerce yet, so to protect that term, I filed an “Intent to Use” with the federal government which protected the trademark until I used it in commerce. Once it is used in commerce, I then filed my application and upon final approval from the USPTO, I was able to use the ® designation.
© is the formal designation of a copyright. A copyright according to the U.S. Copyright Office, “is a form of protection provided by the laws of the United States to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works… Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.
In the case of works made for hire, the employer and not the employee is considered to be the author.” A copyright gives the owner an exclusive right to reproduce, distribute, perform, display or license their work. The owner also owns the rights to produce or distribute derivatives of their work. There are limited exceptions to these exclusive rights like “fair use” for book reviews. To be covered, a work must be original and in a concrete “medium of expression”. Under current law, a work is protected whether is it registered or not. The appropriate notice is the symbol, the letter c in parenthesis, © or the word “Copyright” or the abbreviation “Copr” and the year of first publication of the work and the name of the owner of the copyright. The notice must be fixed so that you are giving reasonable notice of the claim of copyright.
Darity Wesley is CEO and Legal Counsel for Privacy Solutions, Inc. a San Diego based consulting firm. Her team of Privacy Gurus® work with you to create policies and procedures to establish the expectation of privacy for your members, clients, customers, prospects, affiliates, associates, employees and vendors. You can reach her at (619) 670-9462 or [email protected], Visit our website at www.privacygurus.com. For more information