Last week in the EAE Backroom, a Facebook group for editors, Sophie Hutton-Squire wanted to know if she had more than one Curly Wurly (a British candy) whether she would have Curly Wurlys or Curly Wurlies. In addition to making us all hungry, the comment provoked an interesting discussion of how we deal with trademarks, particularly when they’re created from irregulars.
There’s a lot behind the correct answer (spoiler: Curly Wurlys). In this new series, I’ll review the basics of trademarks and outline how we deal with irregular nouns and verbs.
Defining Trademarks and Service Marks
Let me begin by saying this: I am not a lawyer. I am not giving legal advice here. I am sharing information as I understand it. If you question what I say here at all, talk to a lawyer. Cool? OK, let’s dive in.
According to the International Trademark Association (INTA), a trademark is “any word, name, symbol or device (or any combination thereof) that identifies and distinguishes the source of the goods of one party from those of others.” A service mark is the same for “the services of one party from those of others.” We’ll focus on names here to simplify things.
Owners of brands, products, or services want their names to remain recognizable and different to set them apart from the competition. Naming something and then trademarking the name is a way to do that and gain legal protection. Companies lose that protection when the term is used generically. The INTA offers basic guidelines, called the ACID test, for trademark owners to follow to protect their marks (close your editing eyes to the nonparallel nature of the list).
A trademark is an adjective, not a noun or a verb. The trademark is a brand name, not the product (candy, a phone) or service (search). Curly Wurly bar, BlackBerry phone, Google search.
What happens when a trademark is used generically? Protection is lost, and we all ride in elevators, take aspirin, and visit app stores.
Note: a trade name is the company’s business name; it’s a proper noun, not an adjective, so it can be used as a possessive: Reebok’s.
However the company displays its trademarked name, it must do so consistently. This is what distinguishes it from a common word. The owner needs to write LEGO and BlackBerry each time or risk its trademark protection.
Identification or Status
The mark owner should use one of the following established symbols to help identify its mark:
- ™. This is for unregistered trademarks. It has no legal standing (unregistered) but it does help the company make its claim.
- ℠. This is for unregistered service marks. Like the ™, it has no legal standing (unregistered) but it does help the company make its claim. This would be used for services, as opposed to products.
- ®. This is for registered trademarks and service marks. In the United States, you can also use text such as “Registered in the U.S. Patent and Trademark Office” and “Reg. U.S. Pat. & Tm. Off.” For trademarks registered in other countries, check that country’s rules.
INTA advises using the mark at least once in every manuscript or one each web page, either on the first usage or the most visible usage.
What does the D stand for in ACID test? I’ll reveal that next week, when we continue the conversation on trademarks.
Read the final article in this series: “Regularizing Irregulars.”