There is a simple way you could be giving your business the legal edge and best of all it’s free!
Have you considered using symbols such as copyright © or if you have a registered trademark ®?
If your business is not using legal symbols in its marketing materials, you could be missing out on not only a great marketing opportunity but also a useful weapon in sending a clear warning to potential copycats.
Be warned however, you must use them wisely. If your business is using the wrong symbol in the wrong way, it may be committing an offence.
Below are the do’s and don’ts of using trademark and copyright legal symbols.
Which symbol should you be using?
Unregistered Trademark ™ – Is the symbol used to represent an unregistered trademark. The trademark can receive protection in Australia under Common Law but not as much protection as a registered trademark.
Registered Trademark ® – has been registered with IP Australia which is an agency of the Department of Industry, Innovation and Science. See https://www.ipaustralia.gov.au. IP Australia administers all intellectual property rights and legislation relating to patents, trademarks, registered designs and plant breeder’s rights in Australia.
Copyright © – informs the public that a work is protected by copyright laws. Copyright protects artistic, literary and musical works.
Why use symbols?
Consumer confidence in a brand is key to its success. The symbols are a great way of providing consumers with confidence in your brand, particularly if your brand is registered as a trademark.
The symbols also provide constructive notice of the legal ownership status of either your trademark or copyright work. They provide a warning for would be copycats and make it very difficult for an infringing person to claim that they didn’t know a trademark or copyright work was protected at the time of copying. Often successful damages claims for trademark infringement are reliant upon when notice of registration has been given.
Also, if you are planning or have already expanded into overseas jurisdictions, the use of the symbol may be mandatory. In the U.S.A, for example, you are required to use the ® symbol as a prerequisite for obtaining damages if you were to commence a lawsuit for infringement against a copycat.
How to use symbols correctly?
There are many considerations to bear in mind when using these legal symbols. Some of these considerations will have legal impact and others will be purely from an overall marketing strategy perspective.
For example, each county has its own legal requirements and if you are exporting product and do not have a registration outside Australia it may be the case that using the ® symbol will be a risk and will need to be removed from the export product prior to shipment to ensure misleading advertising or infringement does not occur in that overseas jurisdiction.
The first step is to check that you are using the right symbol. It is an offence under the Trade Marks Act 1995 (Cth) to use an ® symbol beside a trademark that is not registered with IP Australia. Improper use of symbols may lead to the devaluing of your mark and/or leave you exposed to a claim for misleading and deceptive conduct.
In Australia, the trademark symbol is usually placed on the right-hand side of the trademark, super-scripted, and in a smaller type size than the mark itself and always follows the mark. E.g. Parkston Lawyers ®.
There is no registration system for copyright in Australia. It is however important that the work meets the requirements under the legislation for the work to be entitled copyright protection. The copyright symbol is often found in smaller print at the bottom of the page and is usually the symbol followed by the year and the author. E.g. © Copyright 2019 Parkston Lawyers.
Where to find the symbols?
Each symbol has a shortcut. To insert them into text, type and hold the “Alt” key with any of the following numerical sequences:
Alt + 0153 for trademark symbol tm ™
Alt + 0174 for registered symbol r ®
Alt + 0169 for copyright symbol c ©
There may be sanctions that can be issued in cases of misuse of symbols and therefore to avoid unlawful use it is important to understand legal symbols and use them correctly. In saying this, they can be a useful, highly cost-effective marketing tools and weapons in a legal battle and therefore whilst some marketers may think that symbols take away from the aesthetics of a trademark from a legal perspective, if used correctly, the advantages that come with the use of a symbol will always far outweigh this small disadvantage.
The contents of this article do not constitute legal advice. They are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have. Parkston Lawyers is able to assist you with all the legal requirements so please do not hesitate to contact us on firstname.lastname@example.org or (03) 9989 0912 if you require assistance with legal matters.