MAKE YOUR (IP) MARK

Intellectual property is a valuable property asset that requires time and money to protect, and it’s important to notify potential competitors, infringers and the general public of your claim as soon as possible.  Proper product markings provide notice to infringers and ensure that the IP owner is entitled to monetary damages in the event of an infringement.  When applicable, the following IP markings should be aggressively used to ensure your property is protected:

“Patent” or “Pat.” + Patent Number

For patented products, the product itself should be marked with the patent number to maximize the monetary damages for the patent owner.  Failure to mark the product may open the door for an infringer to argue that the patent owner is not entitled to damages before the infringer received actual notice that they were infringing the product, e.g. the infringer did not know that they were infringing the product until they received a cease-and-desist letter from the patent owner.  What if the product is too small to be marked?  The patent information may be attached to the packaging, but this should only be done if the patented product itself cannot be marked.   

“Patent” or “Pat.” + URL Address

What if there are multiple patent numbers that cannot be listed on the product?  Patent owners may create websites to identify the patented product along with the relevant patent numbers.  The URL address that identifies the patented product and associated patent numbers must be marked on the product or packaging with an indication that the patent information may be found at the URL address.

“Patent Pending”

Patent applications that have not been granted, including provisional patent applications, enable the owner of the application to mark the product or packaging with “patent pending.”  Although this marking may not provide substantial legal rights, it may discourage competitors and indicates that the owner is claiming the product to be innovative.

“®” for Registered Trademarks

When a trademark or service mark has been registered with the United States Patent and Trademark Office (USPTO) (note that the mark cannot just be pending), the trademark owner may identify the registered mark by the encircled “R”, “Registered in United States Patent and Trademark Office,” or the abbreviation “Reg. U.S. Pat. & Tm. Off.”

“TM” or “SM” for Unregistered Trademarks

If a trademark (or service mark) is not registered with the USPTO, the owner should still give notice to the public that the owner is claiming a right to the mark by using “TM” or “SM” in conjunction with the product or services.  Unlike “patent pending,” it is not required to file a trademark application before using the markings “TM” or “SM.”

“©” + Year of First Publication + Copyright Owner Name

Original creative works that are published should be marked with a copyright notice that includes the encircled “C”, followed by the year of the first publication, and the name of the creator, the copyright owner.  Copyright notices are advantageous in notifying the public of the owner of the work, and preventing a copyright infringer from claiming that he or she had no knowledge that a copyright in the work was claimed.

The laws regarding IP markings are stringent, and the markings must be properly applied to be considered as providing sufficient notice to the public and infringers.  At Renner Otto, we're experts at protecting and propelling your IP.  If you have questions regarding how to properly mark or protect your IP, we're here to help! Contact us for a complimentary consult to see how we can help move your innovation forward.