Ask HN: What's the point of the TM and (R) symbols?
I was reading that Mercedes-Benz PRE-SAFE(R) marketing prose, and it prompted me to ask this question that I've been wondering for a while: Why do companies mess up their text and logo images with TM and (R) symbols?
To be clear: I understand what trademark laws and registration are for. I am not asking for an overview of the theory of trademark law. I'm specifically asking why they insist on slathering TM and (R) symbols in text and in images. What horrible thing would happen if Mercedes-Benz had not awkwardly slapped (R) after every-other word in that article?
46 comments
[ 1.7 ms ] story [ 102 ms ] threadINAL
In books I've often seen sequences of dates signifying new editions, updates, or reprints in the colophon.
Ex:
It is optional (in the US) to provide a valid notice, but if you really want the extra benefits of a copyright notice, the notice must conform to the copyright law. Note that outside of the US, a proper notice may be required, not optional.
A federal appeals court ruled, in Sega v. Accolade, that you can't use a trademark that way. They also ruled that you can copy and reverse-engineer a piece of software to determine functional aspects of the console's operation for interoperability purposes.
It's perfectly legal to require a string somewhere in the header before booting a ROM or running a program. (Otherwise, "magic number" checks to determine if a program is in executable format would be illegal!) The Sega case was specifically about using trademarks and copyright to restrict access to functional aspects of your hardware.
https://www.copyright.gov/history/comp/compendium-one.pdf
It was used pretty frequently in not only typewritten material but in a lot of computer software before the © symbol was widely available in fonts.
As a result, the copyright became a decent heuristic for seeing how recently the page has been updated. Then I think some people, recognizing the use of the copyright as a heuristic, would then update the copyright without updating the page just to make it seem like the page has been updated recently. That's easier than actually updating the content of the page, and the only downside is giving your page a more recent copyright date in the notice. I'm not sure what this does to any copyright disputes though, but I think most people consider copyright disputes more unlikely than someone perceiving a page negatively due to the older copyright date.
https://www.reddit.com/r/explainlikeimfive/comments/383evo/e...
1: https://www.apple.com/iphone-xr/
Other lawyers want it everywhere possible. It's not required to be everywhere, however, just sometimes.
I have one customer who is a franchisee and their franchiser company demands the (R) everywhere because their MARKETER think it's "impressive" to people.
Some companies put the TM and/or (R) everywhere, like every single mention of their product name on a single page.
Others put it only at the first mention, or on a tiny corner of their logo.
Yet others never put it anywhere.
Are these just different lawyers' interpretations? Are they a conscious marketing decision to make a product/brand feel more official/important? Does it depend on how close to being genericized a trademark is (and therefore in danger of being lost)? Is there literally no rhyme or reason, people just blindly copying whatever they think is the "done thing" without actually knowing why? Is it all of these?
> In many cases, you're right in that the TM or (R) is superfluous. No one, for example, is going to be able to argue they didn't know McDonald's or Coca Cola are trademarks for their respective companies, so whether those two are really marked with TM or (R) doesn't matter much.
Mercedes isn't adding the symbol after "Mercedes-Benz", but after PRE-SAFE, which is not something a reasonable person would always associate with them.
Claiming something as a trademark or registered trademark, particularly something new that doesn't yet have a strong brand associated with it, is one possible element in establishing that defence.
There are others. If you set up a new business selling mobile devices called iTelephones, it will probably not be long before you get contacted by Apple's lawyers, whether or not the term iPhone has an accompanying annotation on their promotional work.
> The copyright on this image has been repeatedly violated, and it has been widely reproduced on T-shirts, posters, belt buckles, mudflaps, and other items. In the early 1970s, Crumb's lawyer started threatening lawsuits against anyone using the image without permission. Crumb and A.A. Sales, a producer of unlicensed Keep On Truckin' merchandise, reached a settlement of $750 for the past usage. But A.A. continued to sell unlicensed products after the settlement without paying additional license fees. In 1973, Crumb went to the U.S. Federal Court, and wound up in the courtroom of Judge Albert Charles Wollenberg, who had previously ruled against the Air Pirates. A.A. Sales claimed the work was in the public domain, because Crumb had not included the copyright symbol on the work, although he had in Zap #1 as a whole. The work was covered under the 1909 Copyright Act, and any omission of notice caused the work to be public domain. The drawing had appeared on the business card of Crumb's publisher without the copyright symbol. Based on that, Wollenberg granted A.A. Sales' request for summary judgment and Keep On Truckin' became public domain. In 1977, the Ninth Circuit Court reversed that decision, and it returned to copyrighted status.
Perhaps it is the similar for trademarks. Note that one no longer needs to include the copyright symbol to maintain your copyright: (in the US)
> In the United States, the Berne Convention Implementation Act of 1988, effective March 1, 1989, removed the requirement for the copyright symbol from U.S. copyright law, but its presence or absence is legally significant on works published prior to that date, and it continues to have effect on remedies available to a copyright holder whose work is infringed.
[0] https://en.wikipedia.org/wiki/Keep_on_Truckin%27_(comics)
[1] https://en.wikipedia.org/wiki/Copyright_symbol
There is also SM which is a service mark, TM is generally used for goods or products where a service mark is generally for services offered.
So to answer your question, they would loose their trademark and it would be publicly available for anyone to use.
This has happened and almost happened to many companies when their product becomes hugely successful and people start using their name as the generic name for said item.
https://www.businessinsider.com/google-taser-xerox-brand-nam...
https://www.gerbenlaw.com/university/trademark-symbols/
This feels like kids playing something silly like "mom and dad".
Improper use of the federal registration symbol, ®, that is deliberate and intends to deceive or mislead the public or the USPTO is fraud. See Copelands’ Enters. Inc. v. CNV Inc., 945 F.2d 1563, 20 USPQ2d 1295 (Fed. Cir. 1991); Wells Fargo & Co. v. Lundeen & Assocs., 20 USPQ2d 1156 (TTAB 1991) .
Edit: Otherwise those marks are used to put the public on notice of the claim of the mark. A brand like Mercedes isn't worried about their marks/logos looking ugly with the addition of (r) or (TM), they are worried about their legal rights, and using those symbols (properly) will only assist in their legal claims and enforcement of the same.
However, those symbols signal to others that a trademark / copyright exists and helps to discourage others from copying it.
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2) On the USTPO.gov site I found the following:
> What is the difference between TM and the R within the circle ®?
> Use of the TM and SM symbols may be governed by local, state, or foreign laws and the laws of a pertinent jurisdiction to identify the marks that a party claims rights to. The federal registration symbol, the R enclosed within a circle, may be used once the mark is actually registered in the USPTO. Even though an application is pending, the registration symbol may not be used before the mark has actually become registered.
> The federal registration symbol should only be used on goods or services that are the subject of the federal trademark registration.
> PLEASE NOTE: Several foreign countries use the letter R enclosed within a circle to indicate that a mark is registered in that country. Use of the symbol by the holder of a foreign registration may be proper.
And also:
> Do federal regulations govern the use of the designations "TM" or "SM" or the ® symbol?
> If you claim rights to use a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim of a "common-law" mark. No registration is necessary to use a "TM" or "SM" symbol and you may continue to use these symbols even if the USPTO refuses to register your mark. Those symbols put people on notice that you claim rights in the mark, although common law doesn't give you all the rights and benefits of federal registration.
> You may only use the federal registration symbol "®" after the USPTO actually registers a mark, not while an application is pending. And it may only be used on or in connection with the goods/services listed in the federal trademark registration and while the registration is still alive (you may not continue to use it if you don't maintain the registration or it expires). Although there are no specific requirements on where the symbol should be placed relative to the mark, most businesses use the symbol in the upper right corner of the mark. Note: Because several foreign countries use "®" to indicate that a mark is registered in that country, use of the symbol by the holder of a foreign registration may be proper.
So, in the U.S., it appears there is no federal NEED to use these marks, aside from being able to say that any infringer can't claim ignorance of your claim, BUT that still leaves any state, county, local, or other nation usages unanswered.
What a weird complaint. 99% of your answer does not address the actual question. The only relevant part of your answer is "those symbols put people on notice that you claim rights" and you then neglect to say why that's important.
Once you claim something as a trademark, you own it. You don't officially need to file anything. HOWEVER, if you end up in court against someone with a registered trademark, you'll likely lose unless you can establish "prior art". Prior art means you've used the trademark in commerce prior to the date they did.
This is not true. It might be the legal position in the United States, but other jurisdictions have their own rules and registration processes for trademarks.
Either the lawyers are having the copywriters maximize the notices to be very clear, or the copywriters are told they need to include the symbol and are being overzealous in how often they include it.
IANAL.
Our legal team agreed that in functional contexts (like picking a credit card name from a select box) we could omit the trademarks. But if we had a page that listed all the features and restrictions about the card (non-functional usage) then they must be there.