Some Things Freelance Writers Need to Know about Trademarks

Fiction writers may seldom, if ever, face a trademark issue, but freelance copywriters, article writers, and other writers of non-fiction may have to deal with trademark questions from time to time. One of my writer pals, the late Betty Larkey, knew more about trademarks than anybody I ever met. At one time, she was a contract Trademark Administrator for Holiday Inns, Inc., helping that company protect its trademarks.

Owners of trademarks spend millions of dollars to create, develop, promote and protect those marks, which to them represent the quality of a company’s goods and services. Betty told me that companies believe trademarks help customers identify consistent quality and prevent consumer confusion, and she said companies don’t look kindly on those who misuse their trademarks or who fail to use them at all.

A single trademark misuse might earn you a stern letter from the legal department; repeated violations could result in stronger reprimands or even legal action. Publishers of books and magazines are generally aware of, and comply with, trademark rules; self-publishers may need a crash course in trademark law. Here are some basics:

A trademark may be a name, design symbol or color combination used to identify goods or products. In the U.S., trademark ownership is based upon its first use; in most other countries, it’s based upon its first registration.

Companies go to great length to protect their trademarks, with good reason. Federal law says a company may forfeit its trademark rights through acts of omission or commission which cause the trademark to lose significance in identifying a company’s goods or services. So writers should always use the generic term along with the trademark name — Xerox copiers, NutriSweet brand sweetener, and Weed Eater trimmer are three examples of the proper way to use a trademark name with a generic product.

The most important consideration is a company’s need to keep the trademark from becoming a common noun, as has happened often in the past. Many of the words we use today began as trademarks. In 1921, Bayer lost its trademark to the word “aspirin” when that word become generalized. And Otis lost its proprietary status and its capital “e” in 1950 when the U.S. Patent Office ruled that the word “escalator” had become a common descriptive term for moving stairways.

If you’re a writer employed by a company, you probably have a legal department you can call on to cover you from liability against improper usage. Freelance writers don’t have that kind of protection, but there are several steps you can take to help assure proper usage:

1. Use a trademark notice with every logo, with the first use of a trademark in copy, with the first reference on each subsequent page.

2. The (®) may be used only for a registered trademark; the (TM) (for product) or (SM) (for service) may be used for a mark when registration is pending or not filed. In the U.S., a trademark can only be protected by registration when it is used commercially. A service mark may be used a soon as the service is actually rendered.

3. If you’re writing/editing a newsletter for company employees, for example, using the trademarks and service marks properly will encourage their correct use in external copy as well. You may use a notation at the end such as “The following trademarks and service marks are owned by ….”, but you will still want to use the company’s name properly throughout the newsletter, without needing to use the trademark symbol each time.

4. Never use a trademark as a verb, in the plural, in possessive form, as a coined word, or in abbreviations.

5. If you’re writing advertising and promotional copy, the following notice should appear on every item: (c) (year) (company name).

6. If your copy will be used in countries outside the U.S., follow the copyright notice with “All Rights Reserved.” Some companies that sell their products overseas opt for Foreign Trademark Registration on a country-by-country basis. Do your homework and find out the legal requirements in other countries around the world.

You can always check with a company’s legal department for trademark help. For minor questions, call a government agency such as the Federal Trade Commission (202-326-2222).

For quick trademark help and free and immediate answers to questions about spelling, capitalization and proper usage of trademarks, the International Trademark Association operates a hotline at 212-768-9885. Hours are Monday-Friday during U.S. business hours (but not on U.S. national holidays). The association’s mailing address is 655 Third Avenue, 10th Floor, New York, NY 10017-5817.

© 2008 Laverne Daley

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