Can You Use

Someone Else’s

Trademark?

Often, photographers will establish a “logo” or trademark to distinguish their business from others.

In copyright law, “fair use” sometimes allows a person to “borrow” copyrighted material for the purpose of informing and educating the public. However, the concept of fair use in copyright law does not have a direct equivalent in trademark law. If you plan to use a trademark which you suspect might belong to someone else, it’s important to understand the concept of “use.”

Under trademark law, use of a trademark generally occurs where the mark is associated with a product or service, such as your photography business.

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Trademarks are protectable
whether or not
they are registered.

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The longer a trademark has been in use, the stronger its capacity to be uniquely attached to the business of that original trademark user.

For example, if another business, especially a photographer, uses a confusingly similar trademark to yours, you have the right to bring legal proceedings to stop them from using it (an “unauthorized use”), if you’ve used it long enough for it to have a well-established association with your business.

Can a trademark be mentioned or displayed without the permission of the original trademark owner? The answer is yes, depending on the circumstances.

In order for a trademark owner to be in a position to complain, the owner must establish that the mark is being “used” by someone else as a trademark. Someone, or another business, merely reproducing the mark, would not be enough to attract the sanctions imposed by trademark law.

What would be offensive is a situation in which the mark is used to capitalize on, or “ride on the coattails” of, the goodwill of the original trademark owner. In this case the original owner of the mark is entitled to control the use to which the mark is put.

From a practical point of view, you may want to perform trademark searches to verify whether the mark you are thinking of using (for a non-commercial purpose) has been already registered. If it has, you might wish to contact the trademark owner and seek permission. If this seems impractical, an alternative might be to place an asterisk next to the mark and indicate the owners’ name as a footnote.

The concept of whether you are “using” a trademark for the purpose of veInsertBehavior = "This server behaviThe concept of whether you are Insert Record behavior on the page. " + usingdistinguishing products or services from those of others is important to keep in mind. There is nothing prohibiting the mention or display of a trademark for a non-commercial purpose, or non-conflicting purpose so long as the mark is presented fairly and in good taste. For example, we are all familiar with the trademark: Since I am writing about "trademarks" this example would be "fair use."

Another example. Say my last name was Johnson and my brother and I went into the trucking business and we called ourselves "Johnson & Johnson." As long as we did not use the same type style and script as the former, we would not violate the trademark law by trademarking ourselves, Johnson & Johnson.

If you use the "Golden Rule" you will probably be within trademark law 99%! -RE

As an editorial stock photographer you are going to find much more enjoyment when you are photographing subject matter that you like to take. Learn more about how to sell those pictures at PhotoSource International and the PhotoSourceBANK, Pine Lake Farm, 1910 35th Road, Osceola, WI 54020 USA. Rohn Engh is director of and publisher of PhotoStockNotes. E-mail: info@photosource.com Fax: 1 715 248 3800; www.photosource.com

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