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WHEREFORE THOU ART #34
March of the Doohickeys

Intellectual property law confuses and fascinates people. Talking about infringement, for example, often involves exercises of mental gymnastics that can get philosophical, metaphysical, and political, sometimes all at once. For most flash-point IP issues, there are rarely clear answers, just big murky gray areas within which reasonable people can disagree, and often do.

This month we're going to avoid all that. This month we're going to explain intellectual property doohickeys - those little letters, sometimes in little circles, sometimes not, that get stuck various places and appear to mean something important. By the time you reach the bottom of this page, you'll understand what they mean. No debate. No confusion!

" The omnipresent "C in a circle" denotes copyright ownership. It used to be more important than it is now, but it's still pretty important. In the old days, if you didn't stick the © on copies of your work you lost your copyright! This was a particularly gnarly issue, because for years, the United States was the only country in the world to have this rule, and countless numbers of foreign works would lose their U.S. copyright protection if copies showed up here without a copyright notice. Besides, it was just a stupid and onerous requirement, with drastic, catastrophic results for the unwary. So Congress finally dropped the © requirement in the late 1980's; putting a copyright notice on copies of your work is no longer required.

But it's still a good idea to put the © on copies of works. You are letting people know that you are claiming the copyright ownership of the works. We live in a cut and paste world, and a reminder that, yes, you own that work can help cut down on at least the inadvertent or casual piracy of your work. If somebody infringes your work, and you've got the © on it, the infringer will have a difficult time trying to convince a court that the copying was anything but deliberate and willful, and this can get you a higher damage award. In addition, for digital works, the removal of a digital copyright notice by anyone but the owner is a free-standing and separate act of infringement.

So I typically tell my clients to put the © on every copy of a work that leaves their hands, and to post a © on or near any works that appear in the internet. You don't need to register your copyright with the federal Copyright Office in order to use the ©. You just put down the ©, the year the work was created and /or published, and your name. It's that simple.

(The "p in a circle" does the same thing as the ©, except it's used only as a copyright notice for a sound recording. The "p" stands for "phonogram."

Why the separate designation? It's because every sound recording usually involves two separate copyrights: (1) the composition that's been recorded, and (2) the recording, or performance, of the composition. Let's say you record a sizzling polka rendition of Prince's "When Dove's Cry." Prince owns the copyright to the composition: on your liner notes you'd list his copyright ownership with a ©. You would own the copyright to the recording, and your copyright notice would be with a (. Having the two different symbols avoids confusion as to who owns what.

"TM," as you probably know, stands for "trademark." You can put it next to your logo or your commercial name to let people know that you are claiming the design and/or the words as your official commercial name, or trademark. You don't need to have registered your trademark with the federal Patent and Trademark Office, your state trademark registry, or your county clerk in order to use the "TM," although these things can be important for you to do, depending on the particulars of your situation. And you don't lose whatever common-law rights you may have to the trademark by failing to put the TM next to your logo or name. As with the ©, using the "TM" is simply a way to let everybody know that you're claiming the logo and / or words as your trademark, just in case there's any confusion about it. And besides, it looks cool, all official and businesslike, to have the "TM" next to your mark.

"SM" does the same thing as the "TM," except it stands for "service mark." People tend to make a bigger deal out of the TM-SM distinction than needs to be made. Technically, trademarks are supposed to indicate businesses that are engaged in the sale of goods, and service marks are supposed to indicate businesses that are engaged in the provision of services. I have yet to see a plausible explanation as to why it's necessary to make this distinction, since trademarks and service marks do the same things, are governed by the same laws, and are otherwise indistinguishable in function and purpose. I never use the term "service mark" in my practice, and use "trademark" to denote logos and commercial names universally. After all, they all get registered at the federal Patent and Trademark Office, not the Patent and Trademark and Service Mark Office, right?

I would skip the "SM" and simply use the more recognized "TM" in every case, whether you're selling goods or providing services. Besides, people seeing the "SM" attached to your mark might get the wrong idea, if you know what I mean. You know, whips, chains, and all that. Which might not be helpful. So go with the "TM."

® is another trademark symbol. Strangely, while the "TM" and "SM" aren't in circles, while the ® is. Go figure. ® means that you have successfully made it through the often tortuous and sometimes rewarding process of registering your mark with the Patent and Trademark Office. It indicates that you are serious about your trademark, and now have a federal registration to back it up. I don't know what kind of trouble you could get in by using the ® with your logo without having first registered the mark with the PTO; I doubt that the Trademark Police are going to kick down your door and take your logo away. I suppose if you were using a pirated logo or commercial name, using the ® without having registered would provide some evidence of bad faith deliberate and willful infringement. But I don't think it's really such a big deal. In any event, the "TM" mark is more widely recognized and understood than either the "SM" or the ®, and for that reason the "TM" is probably the most effective doohickey you can use with your trademark.

Doohickey fever! Catch it!

© 2002 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.