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If I'm making a web site, brochure, flier, etc., when must I have trademark information in the fine print?

Presumably if I mention a product such as "Windows" without mentioning, in the text, the maker of that product (Microsoft), then I have to have some trademark fine print, but how about if I merely mention Microsoft? It would seem to me that it would be unnecessary, as Microsoft is the entity itself.

(Edit: The Microsoft/Windows example given here is merely hypothetical in nature. To be more specific, I am not attempting to trick the consumer into believing that my product is endorsed by anyone, but rather attempting to convey the notion that I am using quality components by naming some specific brands.

Perhaps a better example would be that, if I were creating a brochure for a power tool company, and stated in it that, "At Tools'N'Thingamabobs, we sell the best power tools available -- Makita, Hilti, and Milwaukee." Although a few brands are mentioned, at no point do I mention specific products, claim that my business is endorsed by any of the brands, etc.)

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I know this doesn't answer your question, but in case you really are talking about Microsoft, they have guidelines: microsoft.com/about/legal/en/us/intellectualproperty/trademarks/… –  Johannes Jun 8 '11 at 7:09
Very cool, but it was only a hypothetical example. I also found this: cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm , which, like the Microsoft page, mainly focuses on whether or not you are attempting to trick the consumer into believing that your product is endorsed by the trademark owner. –  Michael Jun 8 '11 at 7:18
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2 Answers

up vote 5 down vote accepted

You must follow a trademark owner's guidelines in cases where your publication or website is selling or advertising trademarked products. (See the Dell website, for example, or any of their brochures.) Your power tool brochure might have a "fine print" bit with the masthead and general copyright material, to the effect that the names of products mentioned in the brochure are trademarks owned by their respective manufacturers, but more likely you would simply follow each company's guidelines concerning displaying their marks, without further mention.

This kind of thing comes up especially in co-op advertising, where companies whose products are being advertised help to defray the cost of producing the catalog or brochure. Sometimes that's the only way a distributor or retailer can afford to produce one. If you're designing such a piece, be sure to get all the relevant usage guidelines from the respective companies.

A particular case where it is common to need a separate panel or "fine print" paragraph is in marketing collateral (print or web) for a product that also mentions trademarks owned by someone other than the main product being described or advertised. If you're writing a sell sheet for Acme's new CodeSifter product, that works with Java, Windows, OS X and Unix, all of which are trademarks, you would include a legal block that says so. In a case like that, it's a good idea to have the copy vetted by an attorney before printing a 25,000 run.

If your website or publication is referring to trademarked names as part of editorial, news, or similar copy, it seems to be considered sufficient to capitalize trademarked or copyrighted names, just as you would company or personal names. In theory, a reviewer or article author should write "Windows®", the first time the name is mentioned in an article, but I don't recall ever seeing that done except in marketing collateral of some kind, or official Microsoft publications (but not often there, either). You do NOT need to add a fine print declaration of trademark ownership for any kind of journalistic or editorial use.

You WILL hear from trademark owners if you don't capitalize their marks, by the way. If someone is drinking a certain brand of cola, it's a Coke, not a coke. You can enjoy eating an apple, but if it runs software, it's an Apple.

Browse tech magazine or review websites (one of the big guys, like arstechnica.com, cnet.com, pcmag.com) (all of whom are advised by excellent lawyers), and see what they do.

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I contacted a major advertisement printer, and they told me that I didn't need any fine print... that just (R) was fine. Since they probably print about 50 different brochures a day (at perhaps an average of 2k each run,) and they saw an exact copy of my brochure, I'm trusting their experience, seeing as how they gave it to me in writing. It seems as though it does indeed boil down to the "likelihood of confusion" that the harvard.edu link talks about. –  Michael Jun 9 '11 at 0:58
@Michael - Its not just trust, its a risk trade-off as well. If for whatever reason you are sued in the future simply stating "so-and-so said i didn't need any fine print" won't stop you from having to pay much hard earned money in fines and fees. Pay a little now, up front, and get a document saying you don't need it from a lawyer. Then if the worst happens you have documentation and the liability is pushed off or at least shared with the lawyer. –  Justin808 Jun 9 '11 at 1:16
Yes, it's all about likelihood of confusion, and dilution. That's why in the case of product literature or collateral that mentions other companies' products (regardless of TMs and R-in-a-circles), it's usual to include a clear trademark disclaimer. –  Alan Gilbertson Jun 9 '11 at 1:17
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When do you need to mention a trademark? In my opinion, every time you are in doubt. This comes from the fact that a trademark, especially a registered one, is commercially very important - it can make a huge difference when registering a domain name, for instance, and companies are very likely to enforce it. Thus, why not just mention it when you are in doubt and avoid all the fuss?

But then, I am no lawyer

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Unfortunately, since I know nothing about the legality of any of this, I am in doubt about everything, so I'm afraid your answer doesn't help me very much. :P –  Michael Jun 8 '11 at 17:10
LOL, actually that's what I was trying to imply. The problem is: can you be sure you won't get a cease and desist letter from a lawyer if you use the trademark without putting the (tm)? I am afraid not, because trademarks are enforced with use. If you use it consistently and claim it for yourself, the only way you have to legally keep it is to enforce it. Thus, my suggestion is, always use (tm) when dealing with trademarks OR do like many books where there's a statement along the lines of "each mentioned trademark is owned" etc stuff like that. Saves a lot of hassle. –  Andrea Raimondi Jun 8 '11 at 17:17
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