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TM and SM Symbol Trademark

Discussion in 'Copyright, Trademark, Patent Law' started by newmusic111, Jun 29, 2011.

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  1. newmusic111

    newmusic111 Law Topic Starter New Member

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    Does the TM or SM symbol carry any legal weight?

    Do you have to use it if you're trademark or service mark is still in the process of being official? And if I don't use the TM/SM symbol, do I risk much?

    Thanks
     
  2. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    It is highly suggested although not legally required. The benefits are:

    (1) It let's the universe know of your trademark and should deter others from wanting to use it for their own purposes.

    (2) Without the notice as per statute, such as the symbol, you will be unable to sue for damages beyond statutory unless you can prove that the infringer knew of your trademark (also known as "actual notice.)

    Under The Lanham Act (15 U.S.C. § 1117(c) ) , the minimum damages for trademark infringement are $500 per type of goods or services sold without authorization of the use of the trademark. I'll post the relevant section below.
     
  3. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    15 U.S.C. § 1117 : US Code - Section 1117: Recovery for violation of rights

    (c) Statutory damages for use of counterfeit marksIn a case involving the use of a counterfeit mark (as defined insection 1116(d) of this title) in connection with the sale,offering for sale, or distribution of goods or services, theplaintiff may elect, at any time before final judgment is renderedby the trial court, to recover, instead of actual damages andprofits under subsection (a) of this section, an award of statutorydamages for any such use in connection with the sale, offering forsale, or distribution of goods or services in the amount of -(1) not less than $500 or more than $100,000 per counterfeitmark per type of goods or services sold, offered for sale, ordistributed, as the court considers just; or(2) if the court finds that the use of the counterfeit mark waswillful, not more than $1,000,000 per counterfeit mark per typeof goods or services sold, offered for sale, or distributed, asthe court considers just.

    (d) Statutory damages for violation of section 1125(d)(1)In a case involving a violation of section 1125(d)(1) of thistitle, the plaintiff may elect, at any time before final judgmentis rendered by the trial court, to recover, instead of actualdamages and profits, an award of statutory damages in the amount ofnot less than $1,000 and not more than $100,000 per domain name, asthe court considers just.

    (e) Rebuttable presumption of willful violationIn the case of a violation referred to in this section, it shallbe a rebuttable presumption that the violation is willful forpurposes of determining relief if the violator, or a person actingin concert with the violator, knowingly provided or knowinglycaused to be provided materially false contact information to adomain name registrar, domain name registry, or other domain nameregistration authority in registering, maintaining, or renewing adomain name used in connection with the violation. Nothing in thissubsection limits what may be considered a willful violation underthis section.
     

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