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3 things you need to know about…Publishing an Advertisement

Creating a risk-free winning advertisement is often as challenging as creating a winning product or service!

Consideration of the following three issues in advertising can help keep the focus on your unique message rather than on legal challenges.

1. Can I use another company’s trademark in my advertisement?
The use of another’s trademark in advertising your company’s goods or services may constitute trademark infringement. However, there are two situations in which such use is considered “fair.” Descriptive fair use is use of a term, in good faith, to describe one’s own product rather than to brand it. Everyone has the right to describe his own goods or services, even if the description incorporates someone else’s trademarks. For example, a cranberry juice ad could describe a “sweet-tart” flavor. Such use would not infringe SWEETTARTS® candies as long as the ad did not use the term “sweet-tart” as a trademark. Nominative fair use, on the other hand, is use of another’s trademark to refer to such other party’s product. This use is permissible if you use only what is necessary and do not falsely imply that the products are affiliated or that there is a sponsorship relationship. Remember, it may be necessary to refer to another product by name, but it is not necessary to “borrow” a logo along with the name.

2. How do I avoid false advertising claims?
The key to making advertising and product claims is to provide truthful, nondeceptive information. Claims may be actionable even if literally true - if they have a “tendency to deceive.” One way to avoid scrutiny is to make claims which would be considered a mere opinion or which are so general that they are not subject to measurement. This is called “puffing.” For example, the following statement could be considered puffing: “Our product is the finest available today.” As claims become objective or subject to measurement, the rules become more strict. The FTC requires that all objective product claims, whether expressed or implied, be adequately substantiated by the advertiser.

3. How do I know which symbols to place in my advertisement?
Advertisements should contain proper use of trademark and copyright symbols. In the United States, use ® for federally registered trademarks. Use the “TM” or “SM” symbol for non-registered trademarks. Use “TM” when the mark is associated with “goods” and “SM” when the mark is associated with “services.” It is not necessary to have a registration, or even a pending application, to use these designations. The use of “TM” or “SM” merely indicates trademark or service mark rights are claimed. It is not necessary to use these symbols next to every occurrence of a trademark in an advertisement. Rather, you may place the symbols where a mark is first used on a page or where the trademark is most prominent on the page. Work protected by copyright should include the © symbol (or the word “Copyright”) followed by the year in which the work was first published and the name of the copyright owner.

Getting these three issues right will go a long way toward keeping the focus on your message and avoiding unwanted legal publicity. These three things are not, however, the only issues you should consider when publishing an advertisement. For more information or for your questions, please contact a member of our Intellectual Property Team.

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