2018-05-12
You might have stumbled across the ‘®’ and the ‘™’ symbol countless times during the course of your life. Both these symbols are associated with trademarks. And, while there are some remarkable similarities between the two symbols, there are also some stark differences that must be understood. This information is especially critical for those who are considering trademarking the symbol, logo, or other distinct elements of their brand. For starters, the ‘™’ symbol identifies to the public that the user considers the word, slogan or logo to be a trademark and is often associated with common law trademarks, while the ‘®’ symbol stands for a ‘registered trademark’.
What’s the Difference?
Understanding the basic differences between the two trademark types is important in differentiating between them in the first place.
Common Law Trademarks
Common law trademarks, often denoted by the ‘™’ symbol, are unregistered trademarks. These trademarks can be utilized to protect business names, the trade dress, or the guise of the product. The important thing to know about common law trademarks is that the protection granted to them is territorial in nature. That is, the protection granted is only limited to a set geographical area.
Registered Trademarks
Registered trademarks, often denoted by the ‘®’ symbol, are exclusive in nature and provide its owner with complete exclusivity over its use across Canada for specific goods and services. The owner of the registered trademark is also granted the right to affirm a claim of trademark infringement against outside entities from using the trademark or a similar trademark with the potential to confuse customers.
The Importance of the Distinction
It is evident from the above comparison that a registered trademark offers you greater protection than a standard common law trademark. It is important to understand the distinction to ensure your valuable intellectual property, like your trademarks, are well protected. It safeguards the goodwill and the profits that it earns for your business. Any competent trademark lawyer or agent will recommend that you apply for a registered trademark. Here is why it is so important:
Shortcomings of the Common Law Trademark
The primary shortcoming of the common law trademark is that the plaintiff must establish the existence of tangible goodwill associated with their goods and services in the minds of the common public. Furthermore, the mantle of proving that a third party (the defendant) has misrepresented the use of their trademark rest with the plaintiff. Misrepresentation occurs when the public believes that the goods they were buying from the defendant were actually offered by the plaintiff rests with the plaintiff. Lastly, the plaintiff must also prove any previous damage or any chance of future damage they would suffer as a result of this misinterpretation.
Merits of the Registered Trademark
The court considers the trademark registration, specific to its terms, to determine the extent of the rights available to the plaintiff. The plaintiff can simply rely on its ownership on the basis of trademark registration to consolidate the right of use across Canada. Furthermore, trademark registration often provides their owners with an upper hand in possible disputes. Trademark registration also allows the owner to curate an IP strategy based on its ownership of the trademark.
Needless to say, the services of a qualified trademark agent to guide you through the trademark registration process is beneficial. Contact our team for any lingering uncertainty you may have about trademarks.
