Grid Law founder David Walker provides Business Advice readers with an expert guide to the familiar trademark and copyright symbols that ensure brands are legally protected.
We’ve all seen the little ™, ® and © symbols next to a name, logo or on a website, but what do they mean? More importantly, how should you use them to protect your rights and what happens if you don’t?
Let’s look at ™ and ® first
™ means “trademark”, but this symbol means that the trademark is unregistered. The ® symbol means that the trademark has been registered at the Intellectual Property Office.
You don’t have to use these symbols, but when it comes to taking legal action to protect your brand, they can be very helpful. If you do use them, you must use them correctly. If you don’t, you can be guilty of an offence and risk being fined (as explained below).
Trademarks protect brands and they can make products and services instantly recognisable. Their purpose (from a legal perspective) is to let customers and prospective customers know who these products and services originate from.
This makes them extremely valuable so their owners need to be on guard to protect them against possible infringements. (For more information about trademarks, see my previous article: “Overcoming branding issues for a new business.)
When you have a registered trademark, you have the exclusive right to use that mark (for example the name, logo, phrase etc.) in relation to the products and services it is registered for. If another business uses it without permission, they’re infringing your trademark and you have the right to stop them and sue for compensation.
Taking legal action for infringement of a registered trademark is relatively straightforward. In simple terms, all you have to do is show that your trademark (or something confusingly similar to it) has been used without your permission.
The trouble is, not all brands can be registered as trademarks. There are strict criteria for what can be registered and not all brands meet these requirements. For example, they may be descriptive of what the product does, rather than being distinctive.
Luckily, this doesn’t stop you claiming rights to the brand. The more you use it and become well known as the owner of an unregistered trademark, the stronger your rights will be. When you have developed a strong reputation, you can sue an infringer for “passing off” (the term used for taking legal action to protect an unregistered trademark.)
Suing an infringer for passing off is more difficult than suing for infringement of a registered trademark.
- First, you have to prove the unregistered trademark is yours.
- Then you have to prove you have a strong reputation (known as goodwill) in the mark.
- Then you have to prove you have lost sales because your customers have been confused into buying the infringer’s products or services instead of yours.
Using the ™ symbol helps with the first stage of this. By adding ™ to your brand name or logo, you’re declaring that it’s yours. In a passing off claim you will still need to prove you have a strong reputation and that you have lost sales, but at least you will have overcome one major hurdle.
However, I’ve seen plenty of business owners using the ™ and ® symbols interchangeably.
You must not do this.
The ® symbol must only be used for registered trademarks. If you use the ® symbol for an unregistered trademark you’re committing an offence under the Trademark Act 1994 and could receive a fine of up to £1,000.
If you have a UK registered trademark and are using the ® symbol legitimately on your product’s packaging, you need to be very careful if you’re exporting your products to other countries. If you use the same packaging, but you don’t have a registered trademark in the country you’re exporting to, you could be committing an offence under their laws.
Now let’s take a look at the © symbol
Copyright protection arises automatically. There’s no need to register it and so it’s not always obvious who the owner is. Therefore, we use the © symbol to say who the owner is and this is usually followed by the year in which the work was created.
As explained in my article Intellectual property – How to protect the hidden assets in your business, copyright protects a wide range of materials in your business. So, for example, an author would use the © symbol to show that they own the copyright in a book they have written, and a business would use it to show that they own their website.
If you take a look at the bottom of this page, you will see “© 2018 Business Advice”. This shows that this website is owned by Business Advice (a trading name of Caspian Media Limited). Whilst the website has been running for many years, it is constantly being updated with new content and so the year is updated to reflect this.
It’s not compulsory to use the © symbol and it could become rather inconvenient to use it on every piece of copyright material you produce. However, you should use it on valuable materials which you are either selling or making available to the public – i.e., books, websites, training materials etc.
This is because it helps prove ownership if you ever became involved in a copyright infringement claim. If you don’t use the © symbol you can still prove you are the owner and successfully stop further infringements. However, there are arguments to say that without the © symbol you may not be able to claim any compensation for the damage already done and this could be a significant loss for your business.
So, to round up, the ™, ® and © symbols are all extremely useful when proving ownership of your valuable intellectual property rights. This can make a huge difference to the success of any infringement claims and your ability to recover compensation.
However, they need to be used with care. If you use them in the wrong circumstances you can be committing an offence yourself.
Therefore, if you have any questions about when and where to use these symbols (or about protecting your intellectual property in general) please feel free to email me at firstname.lastname@example.org and I’ll happily answer them for you.
After chicken giant Nando’s launched legal action against a small restaurant it believed had lifted the chain’s branding, Grid Law founder David Walker helped business owners protect themselves against similar claims of trademark infringement.
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