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©1997-2007 Victor G. Arcuri;  All Rights Reserved.  This article may not be reproduced or copied in any form or electronically without the express written permission of the author .

 How To Use A Trademark Correctly

Continued from  previous page

. . .Do not use the trademark with a possessive form:  It is not correct to refer to “Word Perfect’s” features. It is correct to refer to the features of the “Word Perfect” program .

4. Monitor Licensees I Franchisees: Do not license others to use your trademarks except for the goods and services with which they are associated. Then exercise effective control over the quality of the goods and services offered under the licensed trademark, so that it continues to represent the goodwill connected with your products. Failure of a licenser of trademark rights to reserve the right to control the quality of the goods and services offered under the licensed mark can be fatal. Moreover, those quality control rights must actually be exercised. Exercise effective control over the use of your work in labels, signs and displays. Inspect samples of the associated goods, business premises and anything else that displays the mark for the proper usage an appropriate quality. Be sure that your licensees or franchisees do not utilize the trademark in a manner that exceeds the license (for example, on other than the licensed goods or services). Require them to enforce proper use of the licensed trademarks by their employees.

 5. Family of Marks: If your business uses a group of trademarks which have a single component common to each then creating an association among the various marks may allow you to be able to prevent other businesses from using an other- wise dissimilar mark having the same component.

(The basic “Kodak” trademark, for example, has spawned KODA- trademarks, such as Kodacolor and Kodachrome)

If you decide to create a “family” of marks, and to establish overall protection which is greater than the sum of the parts, follow as many of the following practices as possible:

Adopt a highly arbitrary component capable of being used, recognized, and protected by itself.

Make a conscious effort to use, display and advertise the "family" marks together in such a way that consumers become aware that the family exists and associate the family with the trademark owner. Use advertising techniques such as "Another product in the '[Trademark]' family of computer programs."

Advertise in this manner continuously and, if possible, heavily.  

MANAGEMENT AND RECORD KEEPING

 As the owner of a mark it is incumbent upon you to not only use the mark correctly but also to keep records of such use. In this regard we strongly suggest you appoint someone to be your Trademarks Coordinator. This person should administer all aspects of your trademark program. They include;

Training: Make sure your employees (and family helpers) - from mail clerk to chief executive, and particularly marketing, advertising, packaging, and secretarial employees -- know what trademarks you are using and how they are to be used .

Experience shows that a printed trademark policy generally does not provide sufficient reminder unless supplemented with periodic meetings.

Make sure any outside advertising or public relations firms you retain know what trademarks you are using and how to use them. Review all advertising and promotional copy for correct and most effective trademark usage .

 Misuse and Infringement: Your employees and customers should watch for misuse and infringement of your trademarks by others. Misuse of your marks would include making changes in your marks, even unintentionally, or using your trademark as the common name of the goods or services. Infringing marks would include use by another company of a product name or logo that, when used on their product, so closely resembles one of your trademarks as to cause confusion or mistake, or deceive customers.

Your trademarks coordinator should collect information on infringement and misuse, and consider (with the advice of your attorney) whether a demand letter should be sent or other action taken. Employees should not take action on their own if they detect misuse or infringement .  

Records: Establish a file for collecting documents relating to your trademarks. When it comes to determining who used a mark first, establishing distinctiveness, (i.e. "secondary meaning"), or proving continuous use of the mark in commerce the company with documented historical records is in a more favorable position. This is critical in the case of a mark that is not registered. Your file for each un-registered mark should be used to collect:

Records, letters, invoices, receipts and other documents related to the adoption and first use of your mark; Copies of agreements with outside graphic artists assigning right, title, and interest.

Copies of all advertisements that use the mark, dated as of their appearance, together with records of company expenses for that advertising;

Yearly summaries of the amount of product sold under the particular mark.

Copies of each printed label and promotional material as they are delivered from the printer along with a copy of the printers invoice.

Records relating to any changes in the label; and any demand letters to others who try to pirate your mark by using the same or a deceptively similar mark.

Once your mark is registered your certificate of registration is evidence of ownership as of the date on the certificate. From that date forward you are not required to prove you used the mark as of a particular start date. However, you may be required to prove that the mark is still in use. To prove the mark is still in use you should maintain at least a two year record of all of the above.

The Next and Last Step

Now that you know how to use your unregistered trademark correctly to secure trademark rights, and have already decided to make the changes to your web site, stationery etc. as suggested above, we think you should also give consideration to confirming you are not infringing on the rights of others.

For a fee of $US 25.00 ARVIC, will prepare a search of both the Canadian and American trademarks data bases. To order the search go to http://www.tmweb.com/search.asp , or call us, toll-free.

We trust, now that you have read this article, that you will come to the conclusion that you should include a trademark specialist on your list of professional advisors. The staff at ARVIC, welcome the opportunity to be your advisor.

If this article has left you with any unresolved questions, then we ask that you direct them to us. We further ask that you take the time to learn all about ARVIC, who we are, what we can do for you and why you should employ us.

Victor G. Arcuri, President Arvic Search Services Inc., Registered Trademark Agents and Corporate Paralegals since 1982; Across North America Toll Free: 1-888-227-8421

http://www.arvic.com & http://www.tmweb.com

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