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Trademark Basics: What is Acceptable Treatment and Prohibited Holds

Sep 28, 2022 · 4 min read

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Every single day you face thousands of trademarks. If 10-15% of all businesses own one or more trademarks then we eventually have ~1500 TMs seen from around 10,000 ads shown to us daily. That’s not a few, and usually, we even don’t notice when we use them.

Besides, there are some extra trademarks you pay attention to as owned by your counterparties, industry leaders, or marketplaces. For example, iPhone and Android are two trademarks that always accompany mobile developers.

What is allowed and prohibited to do with someone else’s trademark can be confusing, particularly when you haven’t ever registered a trademark for your company. Thus, we prepared several rules for the use of others’ trademarks.

What is a Trademark

A trademark is a sign that represents your business in the market. The first thing that comes to mind is a name of the company or a product/ service, e.g. Apple and iPhone accordingly. Logos and slogans are typical trademarks too.

But a variety of trademarks is bigger. The trademark may include elements other than words - letters, numerals, shapes, packages, colors, designs, or sounds. European Union Intellectual Property Office (EUIPO) currently accepts trademark applications to protect the following items:

Pictures

  • word mark - LEVI’S with a special font and background
  • figurative mark - three sharp stripes of Reebok
  • shape mark - Toblerone triangle pack
  • position mark - red stripe placed along an item of Prada footwear
  • pattern mark - Louis Vuitton monogram LV on canvas
  • color single or combination mark - lilac/ violet of Milka chocolate pack

Sounds

Microsoft distinctive sound when launching computer

Videos

  • motion mark
  • multimedia mark
  • hologram mark

Although video trademarks appeared several years ago as a quite exotic kind along with scent trademarks, these interactive signs suit well for distinguishing yourself in the market and gamification your customers’ experience.

What Is Allowed to Do with Someone Else’s Trademark

Trademarks are intended to protect intellectual property rights rather than to tie entrepreneurs’ hands. They also protect a free market, thus generic or descriptive terms would never be registered as trademarks. Every time you need to use someone else’s trademark, just follow these rules.

You can use another company’s trademark when you sell different goods or services.

For example, if you create a landing page for mobile developing services and use Milka’s lilac/ violet color, it’s fine.

However, some big corporations issue cease and desist orders across all industries. So, if you considered Apple, you’d better drop the idea. Such powerful brands basically endorse anything, and it’s illegal to benefit from it without authorization.

You can use another company’s trademark when you refer to their products or services in a truthful manner.

The first case is comparison. You can compare your competitor’s services and yours - either on the objective criteria or through consumer preferences research.

An example: it’s permissible to mention Amazon writing that your online shop has lower prices or quicker delivery (don’t forget to put proof links on pricing and so on).
The second case is the editorial use of a trademark. For example, if you do content marketing, you can mention other companies’ trademarks to inform, educate or comment on their products/ services on your social media. Just don’t alter their logos and write names correctly.

Another example: you can share the information that your cozy SME product/ service is compatible with a big corporation product, device, solution, etc. it’s permissible to note that your service works with Chromecast (Google LLC trademark).

What Is Prohibited to Do with Someone Else’s Trademark

"Thou shalt not steal" (Do not steal), strictly speaking, would be a sufficient description of what is not permitted to do with trademarks. But digitalization made it much more complicated, so let’s outline clearer what you cannot do towards other companies’ trademarks.
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You cannot use other’s trademarks for their intended purpose – for marking your products or services.

It applies also to similar names, logos, etc. that might confuse customers.

An example: you develop SaaS for remote team working and put the name Microsoft before the name of the service when released. It will be considered trademark infringement, and Microsoft corporation may subject you to legal liability.

Online, you cannot use another company’s trademark as a domain name or as wallpaper on your website.

It’s also not allowed to use someone else’s trademarks for <meta> tags and keywords in SEM campaigns.

An example: you write a code for your online shop and put eBay, Etsy, and Alibaba in the definition of metadata about an HTML document. It will be definitely seen as trademark infringement.

Regarding Google Ads and search engine marketing, a case is not as apparent. In fact, search engines sell adwords to advertisers. And words registered as trademarks don’t really stand out in this set. A search engine sells it both for a trademark owner and its competitors.

However, this game with keywords should not confuse the customer. If the search results make the customer mess up the trademark owner and its competitor or consider them affiliated, there might be trademark abuse. ‘Oh, maybe, it’s their [others’ brand’s] new landing’ and so on.

In practice, courts deal with this SEM challenge to trademarks in different ways, but the main thing they consider is an ecenomical loss. If the value of others’ trademarks drops because of your Google Ads campaign, you’ll probably get legal issues.

In any case, with a registered trademark, you will get a strong legal argument to solve a conflict with those who use your trademark as a keyword (if detected) in a pre-trial order or in a court.
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