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IMPORTANCE OF PROPER USE
A Trade-mark is a valuable business asset. In order to establish and maintain this valuable asset, certain procedures must be followed in the actual use of a Trade-mark.
If a Trade-mark is not properly used, the right to its exclusive use may be lost, and if that Trade-mark has been registered, the registration may be expunged. The use of a Trade-mark must be such as to distinguish the services and wares with which it is used from other services and wares. If the mark does not distinguish the product or service with which it is associated from others, or if it becomes non-distinctive, then it will be invalid and unenforceable.
In order to ensure proper use of your Trade-mark, keep the following questions in mind:
1. Am I giving proper notice to my consumers of my Trade-mark rights?
In order to protect your mark, it is important to alert the public of your ownership of the Trade-mark. For example, if your Canadian Trade-mark is registered it should be accompanied by the symbol ®.
2. Am I using my Trade-mark as an adjective?
Never use your Trade-mark as a noun or verb, but rather always use it as an adjective modifying a noun. For example:
You are not Xeroxing, but photocopying with a Xerox printer;
You are not FedEx-ing the document, you are using a FedEx courier to deliver the document; and
You didn’t buy a brand new pair of Nike’s, but rather purchased Nike brand athletic footwear.
Always use your Trade-mark in the form that it was registered in. Do not pluralize, modify your Trade-mark from its possessive form, abbreviate or change the spelling of your Trade-mark. For example:
Pass the Kleenex Facial Tissues, not the Kleenexes;
Levi’s Jeans, not Levi Jeans;
Jack Daniel’s Whiskey, not J.D.; and
Carr & Company Legal Services, not Car & Company Legal Services.
3. Am I distinguishing my mark?
The desire of a Trade-mark is to create a distinct commercial impression in the mind of your consumers. As such, you will want to distinguish your Trade-mark from surrounding text. An example of doing this includes using bold face or placing your Trade-mark within quotes.
4. Am I protecting my Trade-mark rights?
Any third party use of your Trade-mark should be limited to licensees pursuant to a proper License Agreement. Also, in order to preserve your mark it is important to protect your mark from any infringement. If you become aware of any person using a similar confusing mark you should consult Trade-mark counsel in order to preserve the validity and right to use of your Trade-mark.