A trademark is any word, photograph, or symbol that is used to identify specific products or services. Permission is not required to use a trademark if:
- your use is for informational or editorial purposes—for instance, you use the trademark as part of an article or story, or
- your use is part of accurate comparative product statements.
Informational (or “editorial”) uses of a trademark do not require permission. These are uses that inform, educate, or express opinions protected under the First Amendment of the United States Constitution—freedom of speech and of the press. For example, permission is not required to use the Chevrolet logo in an article describing Chevrolet trucks, even if the article is critical of the company. Similarly, if you are making a documentary film on the history of American trucks, you do not need permission to include the Chevrolet logo. However, the use of the logo must have some relevance to the work. For example, it would not be wise to publish an article critical of overseas auto manufacturing practices and include the Chevrolet logo unless Chevrolet were mentioned in the article.
Using TM symbols
When using a trademark in text for informational purposes, it is not necessary to include the ®, TM, or SM symbols. However, it is good trademark etiquette to distinguish a trademark by capitalizing or italicizing it—for example, “The house was constructed with Styrofoam insulation,” or “He used a NordicTrak exercise machine.”
When using a trademark in a commercial context, such as an advertisement, product manual, or in connection with the sale of a product or service, include the ®, TM, or SM symbols adjacent to the trademark—for example, “Adobe ®” or “PageMaker ®.” Remember—the ® symbol should only be used if the trademark is federally registered. This may be evident from the trademark owner’s use, or you can find it out by researching the federal trademark database. Also, include a statement such as, “Adobe and PageMaker are registered trademarks of the Adobe Corporation.” Place the statement on the index page of a website, the copyright page of a publication, or at the end of a movie.
It’s permissible to use a trademark when making accurate comparative product statements in advertisements. However, since comparative advertisements tend to provoke trademark owners into legal action, an attorney knowledgeable in trademark or business law should review the advertisement before publication. Modification of another company’s trademark may result in a claim of dilution.
Commercial uses of a trademark include advertising, promotion, or marketing, and require permission (except for cases of comparative advertising as explained in the previous section). Commercial uses include business-sponsored promotional activities (such as public presentations), informational advertisements (known as “advertorials”), and merchandise.
EXAMPLE: An auto insurance company publishes a booklet on drunk driving. The booklet includes the logo for a beer company. The use of the logo would be considered a commercial use, so the insurance company should obtain permission.
A trademark parody occurs when someone imitates a trademark in a manner that pokes fun at the mark. A newspaper called The San Francisco Chomical, meant to poke fun at The San Francisco Chronicle, is an example of a parody. Below are some specific rules for trademark parodies. Keep in mind the general rule that applies to both types of parodies: offensive parodies often trigger lawsuits. Therefore, weigh the legal consequences carefully before proceeding.
Generally speaking, a trademark parody is less likely to run into problems if it:
- Doesn’t compete. The use of the parody product does not directly compete with the trademark product.
- Doesn’t confuse. The parody does not confuse consumers; they get the joke and do not believe the parody product comes from the same source as the trademarked goods.
- Does parody. Not all humorous uses are parodies. To avoid trouble, the use should specifically poke fun at the trademark.