Trademark 101

by Tanya McCarthy on August 22, 2019

Trademark can be SO confusing. I know we have posted a lot about some of the BASIC issues out there but what I have noticed recently is a LOT of confusion on how TMs can be enforced. 

The last article that stirred up trouble was me throwing my hands up about the word "DOGS" being put in for a Trademark. 

This was not some fear mongering, scare tactic to get people to FREAK OUT and remove all of their designs with "I love DOGS" on them (which per the TM laws that would be TOTALLY fine to have if that stupid stuff passed). It was posted to let everyone know WHERE the Trademark world is going and what YOU can do to help.

The biggest thing as well all know is EDUCATION. I have a few articles you can check out here

Ok so let's start simple. 

What the HECK is a Trademark?

Per our friend the Dictionary trademark is defined as "a symbol, word, or words legally registered or established by use as representing a company or product."

Pretty vague right? What people don't understand is Trademarks represent BRANDS and are entirely different from COPYRIGHT (which I will go over in a lengthy post soon). Copyrights protect original works of authorship, including graphic design. You want to educate yourself on the Digital Millennium Copyright Act (DMCA) to understand your rights and how your work (and others) is protected online. 

Ok, back to the point, TRADEMARKS.

Again, trademarks are meant to define and protect BRANDS. Think of common items in your household. Ziploc (plastic baggies anyone?), Velcro, Super Glue, Duracell, and on and on. 

Your Trademark, represents YOU. Don't let others bully you into thinking something is Trademarked and you need to take it down without doing some research. Get on TESS, determine their exact TM terms and go from there. Reach out to me or other people who know about these things. 

Trademarks fall into Classes

There are a lot of different classes of Trademarks to help identify different brands. For example, one company may trademark Obsession for one class and another company for another class. 

In this case Golf Clubs and Plants (two TOTALLY different things)

In our case as digital designers if you are geared towards clothing you always want to check the Class 025 Trademarks. Like I had a listing taken down for "This Girl Loves Christmas"

I didn't think to look on this one (WHY WOULD THIS BE TM'd) and as a result I got burned. 

Be mindful. You can find a list of classes by going here. Search TESS before you design and protect yourself. 

So What's Acceptable Use?

Let's go back to our favorite word that is trying to pass "DOGS". This particular application is going for Class 025 - Clothing. This means all of you SVG designers couldn't have a design with solely the word "DOGS" on it. HOWEVER you could have a design on it that says "I love DOGS" and that would be ok. You're not creating BRAND CONFUSION. (So we can breathe easy, because who the heck does single word designs anyway?)

The entire point of trademark infringement is utilizing a trademarked term or phrase that creates confusion such that your products could result in a mistaken BRAND identity. 

Trademark infringement is defined as "the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services"

People who are jerks, will abuse this and go after small businesses "claiming" brand infringement, when they are just trying to eliminate competition. Don't let them fool you. 

Don't go make a design that is similar to another BRAND it's that simple. Check out this funny one on a Cannabis company selling a candy called "Stoney Patch" which is a CLEAR knock off of "Sour Patch Kids"

Clearly this is a GREAT example of BRAND CONFUSION. Here's another good read on a dispensary versus a children's TV network (I see a trend with these stoners lol)

All other complaints fall under COPYRIGHT and the DMCA for the most part. Feel free to get inspiration from something but don't COPY it. Someone will catch you.

So that's the basics I wanted to cover. Keep in mind the following

      • Trademark deals with BRANDING
      • Copyright protects original WORKS
      • Do not create brand confusion
      • Check TESS before you design
      • Single word TMs do not apply to full phrases in design work
Please ask questions below. Join my Facebook group and ask there so we can educate everyone. Keep on fighting the good fight.

Cheers
Tanya
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