Protecting your trademark can help give your brand lasting distinction in the marketplace
Product names appear in text in all sizes and styles. Some appear with an initial cap, wearing a modest ™ or ® symbol. Others are more imposing: they stand out among surrounding text in hulking uppercase letters, or in bolder, italic type. Is there a rule for proper dress regarding trademarks? Is one style preferable to another?
What is a trademark?
First, it might help to provide a definition. AMA Manual of Style defines trademarks as “legally registered words, names, symbols, or colors or any combination of these items that are used to identify and distinguish goods from those goods manufactured and sold by others and to indicate the source or origin of the goods (e.g., brand names).”1 Examples of well-known and recognizable trademarks include Time magazine, NBC, and Coca-Cola.
Another kind of mark, called a service mark (SM), is the same as a trademark except that it is used to distinguish services instead of goods. Examples of service marks include McDonald's (restaurant services), AT&T (telecommunication services), and Amazon.com (internet services).
A third kind of mark, known as a trade name, is one given by manufacturers or businesses to specific products and services.1 For example, Oleptro, a drug indicated for the treatment of major depressive disorder in adults, is the trade name (or proprietary name) for trazodone.
When first introduced, trade names carry a ™ symbol. Once they've been registered with the United States Patent and Trademark Office, they are entitled to carry the registered symbol ®.
In the world of trademarks, being upgraded from a ™ to an ® is like graduating from an institution or receiving a promotion. There are perks that come with the change in status. Unlike ™ or SM symbols, marks that have passed review and have received a prestigious ® on their varsity sweater are given legal protection should an upstart product show up on campus and try to appropriate their name.
Why use a trademark?
There are several good reasons to use a trademark for a biotech brand:
- To help your brand stand out
- To give the name distinction from generics
- To minimize the chance that your product will become generic, or, through disuse, become abandoned entirely
- To protect it should litigation issues arise.
A trademark is weakened when it is used infrequently. The more often the symbol appears—whether in print or on the internet—the more recognizable it becomes and the better its chance for protection.
Classification of trademarks
Trademarks are classified into five categories: generic, descriptive, suggestive, arbitrary, and fanciful. Suggestive, arbitrary, and fanciful marks are more likely to receive trademark protection than are generic and descriptive marks. An example of an arbitrary mark (a common word that has no specific connection to its product) is the Nova television series. An example of a fanciful mark (created solely for its use as a trademark) is Kodak.1
To receive trademark status a mark must be distinctive (i.e., not similar to other marks) and not generic or merely descriptive of a category of products. For example, trademark status was not awarded to World Book or Farmers Almanac because both were considered “merely descriptive of the contents of each publication.”1 And Software News received no trademark status because it referred to a class of products of which the magazine is a member—that pertaining to software. So, a rule to remember is this: When choosing a name for a product, make sure the trade name is distinctive enough from its generic name.1
Effective and ineffective ways to use trademarks
Note the words effective and ineffective. How a company chooses to use a trademark is usually not a matter of right or wrong—it is more a matter of care and protection, of treating one's mark with distinction. Here are eight guidelines to follow when presenting your trademark on a sales aid or website.
1. Do not use a trade name as an adjective.
Avoid: Product X efficacy profile
Use: The efficacy profile of Product X
Exception: It is permissible to write Product X tablets because tablets in this context is a dosage form.
2. Do not hyphenate or divide a trade name over more than one line of copy. (An exception to this rule is in the Physicians Desk Reference, in which product names are sometimes divided to save space.)
3. Use caps, bold, italic or bold caps to ensure that your trade name stands out from the surrounding text. If you opt for an initial cap style, use the ™ or ® symbol.
Note: You are under no obligation to use distinctive type for a competitor's trade name or to include a ™ or an ® symbol. Let competitors fend for themselves. When using a competitor's trade name in a promotional piece, however, clients usually include the following text near the sign-off: Trademarks are the property or their respective owners.
4. Do not describe the trade name as a sponsor.
Avoid: Sponsored by Product X
Instead: Sponsored by Y Company, maker of Product X
5. Do not use the product name as a possessive.
Avoid: Product X's safety profile
Instead: The safety profile of Product X
6. Avoid referring to the trade name as it.
7. Make sure the trademark symbol (and generic) appear in text at the first or most prominent place on a page or spread.
If the logo appears, you can omit the generic or symbol from the text. (Some companies include the generic and symbol when the logo appears; others do not. Either way is acceptable—the important thing is to maintain consistency throughout.)
If the logo is not present, make sure the generic and symbol appear in the text.
8. Avoid using the product logo in a sentence or in a heading. Logos should be set off away from text. Use a conventional font in running text.
So, what's the best way to protect your trademark? Use it frequently and present it in a consistent style. One way of displaying your mark is not necessarily better than another way. What's most important is that you take pains to recognize your trademark's uniqueness and to treat it with the respect it deserves.
Reference: 1. Iverson C, Christiansen S, Flanagan A, et al. AMA Manual of Style:a Guide for Authors and Editors. 10th ed. New York, NY: Oxford University Press, Inc; 2007.
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