SYMBOLIC MEANING – IP

“Symbolic Meaning”: You expect to lie on a couch with the bearded therapist prying into your relationship with your mother through interpretation of your dreams using Jungian symbolic meaning or Rorschach inkblot tests… but it is not so hard …Here we explain the TM, R Circle and Copyright symbols without the beard or couch.

TM SYMBOL

What?

Abbreviates the words “trade mark”.

Simply conveys you are treating the particular brand element as a trade mark.

Does not confer any protection + cannot be relied on to prevent third party use of your trade mark.

Not compulsory but generally desirable to convey a strong IP position.

When?

Anytime:

  • You do not need to have filed an application.
  • You do not need to have achieved registration.

Not compulsory but certainly desirable to convey a strong IP position.

Why?

1.  Deterrent

The TM symbol may deter competitors from using or applying to register same or similar mark.  At the very least it conveys possible common law (unregistered) rights.  A well advised trader would at least conduct further analysis.

2.  Useful for use

It may be that your trade mark currently is not distinctive enough to qualify for registration + you are accumulating use to demonstrate that the mark has acquired distinctiveness.

When it comes to filing evidence of use, consistent use of the TM symbol may assist in demonstrate that you have been using the applied for trade mark as a trade mark and may assist in securing acceptance.

How?

Letters typically written in subscript / superscript style immediately after the trade mark™ (that is, appearing smaller than the normal line of type and is set slightly below or above it).

example:               1P™

Seems simple – anything to watch out for?

Given that the mark need not be registered or the subjection of an application, the TM Symbol is often used liberally by traders.  However, care is warranted because if your use is challenged by another trader, they may argue that this evidences trade mark use of the infringing trade mark.  Use as a trade mark is an element of an infringement claim.

® SYMBOL

What?

Conveys that the trade mark is registered.

Does not confer any protection + cannot itself be relied on to prevent third party use.

Not compulsory but generally desirable to convey a strong IP position.

When?

Strictly only once registered.  Filing an application to register the mark does not mean that the mark is registered and the mark must have achieved registered status.

In Australia (and many other countries) it is an offence to represent that a mark is registered when it is not.

Why?

May deter competitors from using or applying to register the same or similar mark by conveying that the trade mark is registered.

How?

Letters typically written in subscript / superscript style immediately after the trade mark®

example:               1P®

Seems simple – anything to watch out for?

Take great care to ensure that the R symbol is not used before it is registered.

Do not include the R symbol in a mark when applying to register it.  You will receive an objection from the Trade Marks Office on the basis that the mark contains a prohibited sign.

There are some potential issues if you are distributing goods or services in countries outside Australia.

As outlined above, many countries prohibit representing an unregistered trade mark as registered. If goods are actively promoted, distributed or sold in another country, care should be taken with packaging / promotional materials, representations and use of the r symbol. If universal packaging / promotional materials are desired, consider securing registered trade mark protection in all relevant countries or consider using the TM symbol instead of the R symbol.

The Internet raises special considerations regarding trade mark use and use of the R symbol.  Of course websites can be accessed from anywhere in the world. However, in trade mark terms the question is whether goods or services are available to and / or actively promoted in a particular country.

Therefore, careful analysis is warranted for international communications.

© SYMBOL

What?

The letter C stands for copyright and the C symbol is used to convey that copyright protection exists in copyright works apart from sound recordings. The C symbol is typically used in a copyright notice.

The C symbol used to be more significant when the USA was not a member of the Berne Convention and it would only recognise copyright where the © symbol was used in accordance with the Universal Copyright Convention (overtaken by the other treaties that do not require this formality).

Does not confer any protection + cannot itself be relied on to prevent third party use.

Not compulsory but generally desirable to convey a strong IP position.

When?

Copyright is not a registered right in Australia, unlike patents, trade marks, designs and plant breeder’s rights where registration is a precondition to protection.  Copyright protection is granted automatically
from the time an original work is created.

The C symbol can be used once the work is created.

Why?

Warns people that you own the rights in the work.

How?

Use the C symbol as part of a copyright notice.  There are various forms of copyright notices but typically the notice is the copyright symbol ©, your name (and the names of other co-creators), and the year in which the work was created or published.

example:               © Lance Scott 2011.

Seems simple – anything to watch out for?

Given the lack of a registration system, it is very simple, indeed deceptively simple.  Copyright can be complicated because the creation may comprise multiple copyright works with multiple owners.  Also in many instances the author of a work will be the owner of copyright.  However, this is not necessarily the case.  There are also rigorous requirements for obtaining assignment of copyright works.

At an early opportunity ensure that the correct person or company actually owns copyright.  You may not have cause to consider the issue again until you are required to enforce or assign copyright and it may be too late to tidy things up.

For copyright in sound recordings use the ℗ symbol (P) which stands for “phonogram”.  A sound recording has a separate copyright that is distinct from that of the underlying work (often a musical work, expressible in musical notation and
written lyrics), if any. The sound recording copyright notice is a copyright for just the sound itself, and will not apply to any other rendition or version, even if it performed by the same artist.

Copyright will often subsist in a logo or graphic trade mark as an artistic work.  However, it is not very common to use the C symbol in conjunction with the logo or graphic.  Most traders use the TM or R symbols to convey trade mark rights.

Do not include the C symbol in a graphic / mark when applying to register it as a trade mark.  You will receive an objection from the Trade Marks Office on the basis that the mark contains a prohibited sign.

http://www.1place.com.au/

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