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Proper use of a Trademark for an Austin business

1. What are Trademarks?

A trademark is any word, name, phrase, slogan, tagline, image, symbol, design, device, or combination thereof that acts as a “source identifier,” i.e., something that identifies and distinguishes the goods or services being provided and creates the association in the consumer’s mind that the goods or services emanate from a particular entity. 

A trademark is important and valuable to both businesses and consumers.  A distinctive trademark allows a business to build public goodwill and brand reputation for its goods or services.  Further, by acting as a source indicator, trademarks help consumers make informed purchasing choices based on their purchasing experiences.

In contrast, a trade name, i.e., a corporate or business name, is not the same as a trademark.  Though many companies use and register trade names as trademarks, a trade name is the name of the corporate or business entity and is used when referring to the business itself, not as a brand of goods and services provided by the business (see examples below).

2. Proper Usage of Trademarks

A. Trademark Consistency and Clarity

  • Do not alter the trademark. You should never vary the appearance of the trademark by abbreviating it, changing its spelling, using improper capitalization, or adding hyphenation.

  • Keep the trademark clear and easy to recognize. Maintain the legibility of the trademark.  Never reproduce the trademark in a manner that causes it to become illegible or blurry.  In particular, never reproduce a logo at a size so small that it is not clear and easily recognizable.

B. Trademark Distinctiveness

  • Set the Trademark apart from surrounding text. When a trademark is used in a non-stylized form, such as part of promotional or marketing materials, it should always be distinguished from the surrounding text by being rendered consistently in capital letters, boldface type, italics, underscored, a different color, or set in quotation marks.

  • Maintain space between a trademark and other graphics. Always allow a minimum clear space around a trademark, particularly a logo or design.  Never violate the clear space around a mark with any graphic elements, words, or charts that obscure, change, or reduce the recognizability of a trademark.

Example:

CORRECTINCORRECT

EAGLE CAP OUTDOORSTM
Eagle Cap OutdoorsTM

                                          

Eagle Cap Outdoors
EAGLE Cap Outdoors

(Make the mark stand out…all caps, special font, all bold, etc. for the entire mark)

EAGLE®
Eagle®

Eagle
(All caps, special font, all bold, etc. for the entire text when used as a trademark.)

C. Trademarks are Adjectives

  • Use the Trademark as an adjective followed by a generic noun. When used in a sentence, trademarks are adjectives and should always be followed by the generic term for the type of good or service that the mark is associated with.  This is because the mark is a brand name of the good or service, not the good or service itself.  Additional emphasis can be given to trademarks by using the word “brand” after the mark or by using one of the acceptable symbols that indicate the trademark status (see below).

  • Do not use the Trademark as a noun, a verb, a possessive, or in plural form. Never use a trademark as a noun or as a verb.  Trademarks cannot be pluralized.  Never use a trademark in a possessive form unless the mark itself is possessive.

Example:

CORRECTINCORRECT

EAGLE CAP OUTDOORS® product review services are available…

Eagle Cap Outdoors® reviews and how-to guides…

 

Eagle Cap Outdoors™ reviews products and services in the outdoor industry…
(Don’t use the mark as a noun. The mark is the brand name of the product, not the product itself.)

D. Trade names vs. Trademarks

  • Use the Trade to refer to the company. Unlike a trademark, a trade name is a proper noun.  A trade name is used when referring to the company itself.   A trade name can be used in the possessive form (for example, “Eagle Cap Outdoors’ newest line of software solutions”) and need not be followed by a generic nouns that defines a product or service (for example, “Some of the top product reviews are performed by Eagle Cap Outdoors.”  Also, when used as a trade name, the trade name should not be set off from other text (i.e., not in all caps, special font, all bold, etc.)
Example:
CORRECT (as a Trademark) CORRECT (as a Trade Name)
The EAGLE CAP OUTDOORSTM review services improve your outdoor experience Eagle Cap Outdoors is located in Austin … (Not capitalized)
Eagle Cap Outdoors is a top ten product review company.

E. Trademark Status and Symbols

  • Use the proper trademark symbol.
    A trademark should appear with the proper trademark symbol (e.g., ™ or ®).

    Unregistered trademarks are identified with a superscript “TM” symbol (e.g., ™).  As soon as you begin using a trademark you may include the “™” symbol.  This puts the world on notice that you are using the mark as a trademark. 

    You should not use the ® symbol until the trademark registers. 

    Once the trademark is registered with the USPTO, you should immediately begin using the ® symbol in association with the trademark to put the world on notice that you have registration in the United States. 

    Generally, appearance of the symbol is not necessary for every occurrence of the trademark in written materials (e.g., article, press release, advertisement, or on a website, etc).  However, at a minimum, symbol identification should occur at least once in each piece, either the first time the mark appears or the most prominent use of the mark.  When in doubt, it is acceptable to err on the side of “over-marking.”  For instance, the appropriate symbol should be used with the first or most prominent appearance of the trademark in headlines and the first time the trademark appears in body text.  The appropriate symbol should also be used on each subsequent page if the topic is different or if the pages can be separated and distributed independently.

F. Affixing Of Trademarks

  • Use on products and marketing materials. Affix a trademark on the products with which you intend to use it; you can also put the mark on the company website, brochures, etc.; it is also acceptable to use on letterhead, invoices, etc.

  • Use the proper trademark attribution statement. All marketing collateral, advertisements, product packaging, web pages, and studies that include the Trademark also should include the proper trademark attribution statement crediting ownership of the company, especially when licensed to be used by a third party.  Typically, the attribution statement is displayed at the end of the material or in the footer of the document or webpage.  The correct trademark attribution statement is:

EAGLE CAP OUTDOORSTM and EAGLE are trademarks of Eagle Cap Outdoors, LLC (once a mark registers you may amend this statement to use the ® symbol for each registered mark).

  • No third party products. Do not use a trademark in connection with any third party trademarks, on products that also include third party trademarks, or to sell or market products or services other than those of your company unless you are using the mark in association with retail sales services.

Our team can audit your website and marketing materials and provide feedback for proper trademark use. We can also help you decide when and where to apply the TM and ® symbols.
AUSTIN IS A THRIVING CITY FOR STARTUPS AND GROWTH COMPANIES 

Austin is the capital of Texas and offers a great quality of life for its residents.  The city is thriving with restaurants, museums, nightlife and plenty outdoor activities in the hill country.  Texas does not have a state income tax so it is very business friendly.  In addition, companies are drawn to the strong talent base that Austin has to offer.  The University of Texas is graduating a record number of talented students and many smart and creative people are now calling Austin home. 

Austin is also one of the fastest growing cities in the United States and often tops the list for best places to live in the United States. It is no wonder companies like Tesla and Oracle have recently relocated their headquarters to Austin. Here are a few notable tech companies that are expanding their presence in Austin:

  • Google is building an impressive office building in the heart of downtown Austin.
  • Amazon is building a 3.8 million sq ft fulfillment center in Pflugerville.
  • Facebook is reported to be adding 1 million sq ft of office space in Austin, according to the Texas Business Journal.
  • Apple spent $1B on a new campus in North Austin.

This growth is because Austin is one of the best cities for business startups.  Some of the key reasons are:

  1. Austin is attractive to employees
  2. Austin has a growing millennial population and strong talent base
  3. Texas is tax friendly to businesses
  4. Austin has an “innovate” culture

Austin is also home to some top brands beyond just Tesla and Oracle. Some of Austin’s most notable trademarks are listed in the below chart.

If you are already part of a business in Austin or you plan to start a new business in Austin, give us a call for a free consultation.  We have helped hundreds of companies in Silicon Valley, New York, Chicago, Portland and Seattle with their intellectual property needs (trademarks, patents, IP strategy, IP due diligence, trade secret strategy, etc.).  We understand intellectual property and we are here to help you successfully grow your company in Austin.

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