Last week we discussed the advantages of copyrighting your work. Today, in our second of a three-part series, we look at trademarks. A trademark (™) is, “A word, phrase, logo, or other graphic symbol (i.e., the shape of a Coca Cola® bottle) used by a manufacturer or seller to distinguish its product(s) from those of others.” The main purpose of a trademark is to designate the source of goods or services, allowing it to essentially serve as the commercial substitute for one’s signature. But, there’s a catch. These notices aren’t mandatory, so lack of one doesn’t mean there’s not a trademark, which is why it’s to your advantage to find out when you need to use one. 
Protecting Your Work
Unlike copyright law, trademark law doesn’t protect original expression. To receive federal protection, a trademark must be:
- Distinctive rather than merely descriptive or generic
- Affixed to a product that is actually sold in the marketplace
- Registered with the U.S. Patent and Trademark Office (USPTO)
While trademark owners are able to trademark specific words, images, etc., it doesn’t mean they have a monopoly on their use. They just have the right to use their mark in commerce and to stop others who offer the same type of goods or services from using a confusingly similar mark.
Thankfully, trademark law allows for “fair use” of someone else’s trademark without getting their permission. So, if your narrative contains a trademark in a descriptive sense such as, “Jeb jumped on his Harley and headed out west.” (Fictional). Or, “After testing many vacuum cleaners, I found the Dyson vacuum to have the best suction.” (Nonfiction), the trademark is being used to describe goods or services in such a way that doesn’t suggest an association with those goods or services, which means it’s fair use.
Also, if you use someone’s trademark to express an opinion, or to inform or educate others, there’s no infringement. That’s because you’re not using it to sell goods or services. Your use is informational, not commercial.
Here are a handful of examples of when you should NOT use a trademark in your writing:
- The work is a public domain image that includes a trademark (i.e., a building or a sign with a logo, slogan or product name, or even a shape)
- You use a character from a public domain work, and the character is a trademark (i.e., Mickey Mouse)
- You use a trademarked word, phrase, or logo as part of your product’s name or packaging
- You use a work’s title, and the title is protected as a trademark (usually, a well-known title that the public associates with a specific work)
The bottom line: You don’t need permission for informational or editorial use, but for commercial use, get permission or take your chances. For more facts on trademarks, visit the US Patent and Trademark Office. Next week we’ll wrap up our series with ISBN Numbers.
Sarah Hovis
saliho creative
web: www.salihocreative.com
About Sarah Hovis