Proper use of your mark is necessary to both establish and maintain your trademark rights. Sometimes a trademark can become less distinctive through misuse. It can even become generic if others begin using the mark as if it were the proper name for the type of good or service sold, as was the case with the mark, ESCALATOR. Your management and control over how the mark is used will determine to a large extent whether or not you will be able to preserve your rights in a mark. Proper use of your mark will clarify that the mark is a brand and not a type of product. What's more, failure to use your mark properly can be used against you in court, in the event your challenger claims the mark is not distinctive. This can happen when the court views your own misuse of your mark as an admission that you did not consider the mark your proprietary property in the first place.

The following rules will help you establish trademark rights, and prevent problems that can erode the enforceability of your trademark rights, once established.

"Affix" the trademark to the goods or services provided

Affixing your trademark to goods and services is necessary in order to demonstrate that a mark is used in commerce, which is a fundamental requirement for trademark ownership in the United States. For a trademark to be "affixed" to goods, the mark should ideally be either placed on the goods themselves, or on their containers or attached tags or labels. The affixation requirement for goods may also be satisfied if the mark is prominently featured on a conspicuous display associated with the goods. If none of the above are possible, the mark may be used on documents associated with the sale of the goods, as a last resort. For services, a trademark is "affixed" if it is used in the sale or advertising of the services, as long as it is used in direct and explicit reference to the services provided.


Always use the mark as an adjective

It is very important to always use the mark as if it were an adjective, and never use it as a noun or a verb. For example, do not allow marketing material to read, "AURORA is the best cat litter on the market." Instead say, "AURORA brand cat litter is the best on the market," or even "AURORA cat litter is the best...." Similarly, makers of the XEROX brand copier probably cringe when they her people say they are XEROXING instead of saying they're making copies on the XEROX copier. These tips may seem like ridiculous distinctions to some. However, the consequences for dismissing this advice are great. If your mark is challenged on the basis that it is generic, you will have a much harder time arguing that your mark is not generic when you have treated your mark as if it were a class of goods, rather than a single brand in a class of goods.


Set out the mark from surrounding text

You should italicize, underline, capitalize and/or bold the mark when it appears in text in order to set it out from the generic word for the product. This helps maintain the distinctive nature of a mark in the minds of consumers.


Provide notice next to your mark whenever possible

You provide notice of trademark rights when you use of the symbols, TM, SM or ® next to your mark. You can also provide notice by using a phrase such as "XYZ Company is the registered owner of the trademark ABC," or "Reg. U.S. Pat. Off." Use the former phrase whenever ownership of the trademark is not obvious from the context in which it is used. Click here for more information on using symbols. Again, failure to notify the public that a particular word, phrase or symbol is your proprietary property, you will have a very hard time convincing a court of the same. More importantly, perhaps, by providing notice next to your symbols, you're alerting the world to your claim of right, and will deter others from innocently adopting similar symbols for their products.


Avoid plural or possessive forms of the mark

Never use a mark in the plural form, for instance NIKES or REEBOKS. In these examples, the plural form encourages the public to view these marks as if they were synonyms for shoes. A possessive form, such as NIKE's or REEBOK's is similarly problematic.


Don't dissect the mark by abbreviating

If your mark contains more than one lingual or graphic component such as TOY HAVEN, use both words instead of referring to the company as the HAVEN. Dissecting trademarks can cause them to lose their distinctive quality in the minds of consumers.