Can You Use Trademark Symbols in Your Ads?

In addition to marketing a brand, advertising can also serve as a medium for providing social and commercial messages to the public. Digital media has also evolved as a massive platform for advertising. Trademarked symbols or logos are often used in advertising. But are you allowed to use other people's trademarks in your advertisements?

On the bright side, not all use of other people's trademarks in your advertisement is considered an infringement. You can use trademarks in your advertisements as long as it does not infringe the owner's rights or confuse the public.

How Can You Use Trademarks in Your Advertisements?

Most useful social and commercial communication would be impossible if advertisers were under a threat of infringement lawsuit every time there is a reference to a trademark. Although registered trademarks are protected from infringement, there are instances where they can be used.

Although a company owns exclusive rights to a trademark, the trademark may become generic over time. Both XEROX and KLEENEX have both run into issues where their trademarks have been in danger of becoming generic. Carefully structured advertisements have assisted these companies in retaining their trademark rights. If your advertisement uses the trademark symbol to merely describe something, and does not create consumer confusion, then the use may be justified. To defend the use under this logic, a person must use the trademark other than as a mark, in a descriptive sense, and in good faith.

Trademark registration provides protection to the owner from infringement and aids in preventing consumer confusion. Infringement occurs when you use someone else’s trademark to profit from it without obtaining prior permission. When you use a trademark without prior permission from the owner, to sell their products and services, or to portray yourself as an authorized dealer, then this is termed as infringement. Mere mention of a trademark in the advertisement does not count as infringement. For example, if you wish to sell your used iPhone online and you advertise for it, then it does not count as infringement. But, if you portray yourself as an authorized dealer, which is not true, then the use will be an infringement.

Comparative advertising is another way where the use of a trademark may be justified. Such use is beneficial because it promotes healthy competition, and permits the consumer to make an informed choice. The unauthorized use of a trademark in comparative advertising may be permissible as long as the advertisement does not create a misrepresentation or confusion among consumers as to the source, identity or sponsorship of the advertisers.

Whether the use of a trademark in your advertisement is likely to confuse the public or infringe a trademark is determined by the language of the advertisement. While the use of a third parties trademarks can be permissible in some situations, it is best to discuss any potential issues with a trademark agent or lawyer with trademark experience to avoid the consequences of trademark infringement.