Not long ago, 60 Second Marketer contributor Jon Andersen answered a question many marketers have about Trademarks and Trade Names.  Mr. Andersen runs the Andersen Law Firm and specializes in advertising and marketing law.

Here’s his answer:

A question which frequently arises in trademark matters is: what is the difference between a “trademark” and “trade name?”  Both have similarities but have different functions.  A trademark (or service mark) identifies the products or services of its owner and distinguishes these products or services from those made and/or sold by others.  A trade name, on the other hand, is generally considered to be any name used to identify a business or trade.  So, if a word or mark is used solely as a trade name to identify an individual or a
company and not the products or services of that individual or company, then it is not a
trademark (and could not be registered as such).
However, where a word or words, or a term of some sort which forms part (or even all) of a
company’s name is used in some manner to also create a separate commercial identifica-
tion of the company’s products or services, then it may also serve as a trademark.  Since
the issue of whether a company’s name is used both as a trade name and a trademark is
a question of fact in a registration prosecution, and the decision is frequently determined
by an examination of the specimens submitted in support of the application, here are
some tips for weighting the table in favor of trademark use:

1. Put the company’s name on the product or in the advertisement without the word which specifies the type of entity it is, i.e.  without Inc., LLC, Co., or Corporation. Make it: “Big Time Enterprises” rather than “Big Time Enterprises, Inc.”
2. Where the name is being used as a trademark or service mark, use a different font, of font size or even a different color, all of which will support the argument that the name is a trademark.
3. Do not link the name with the company’s street or mailing address, telephone number, or email address when it is being used as a trademark.  These tips are especially important where the specimen being submitted is something like an invoice, order slip, or other typical company business forms.  The key is to somehow make the use of the name distinctively different for trademark purposes that it is when
   functioning as a trade name.

Remember:
A trademark should never use “Inc.”
Or be tied to an internet link
If the mark’s not pristine
And the specimen clean
Your registration will probably sink

Jon Andersen runs the Andersen Law Firm.  He received his Bachelors degree from Pur-
due University (Go Boilermakers!) and JD degree from Emory University’s Law School.  He
focuses most of his activity on advertising, marketing, communication and intellectual
property matters.  His special interests are sweepstakes, contests and promotions, trade-
marks, copyrights, and advertising/marketing business matters.

Recently, 60 Second Marketer contributor Jon Andersen answered a question many marketers have about Trademarks and Trade Names. Mr. Andersen runs the Andersen Law Firm and specializes in advertising and marketing law.

Here’s his answer:

A question which frequently arises in trademark matters is: what is the difference between a “trademark” and “trade name?”  Both have similarities but have different functions. A trademark (or service mark) identifies the products or services of its owner and distinguishes these products or services from those made and/or sold by others.  A trade name, on the other hand, is generally considered to be any name used to identify a business or trade. So, if a word or mark is used solely as a trade name to identify an individual or a company and not the products or services of that individual or company, then it is not a trademark (and could not be registered as such).

However, where a word or words, or a term of some sort which forms part (or even all) of a company’s name is used in some manner to also create a separate commercial identification of the company’s products or services, then it may also serve as a trademark. Since the issue of whether a company’s name is used both as a trade name and a trademark is a question of fact in a registration prosecution, and the decision is frequently determined by an examination of the specimens submitted in support of the application, here are some tips for weighting the table in favor of trademark use:

1. Put the company’s name on the product or in the advertisement without the word which specifies the type of entity it is, i.e. without Inc., LLC, Co., or Corporation. Make it: “Big Time Enterprises” rather than “Big Time Enterprises, Inc.”
2. Where the name is being used as a trademark or service mark, use a different font, of font size or even a different color, all of which will support the argument that the name is a trademark.
3. Do not link the name with the company’s street or mailing address, telephone number, or email address when it is being used as a trademark.

These tips are especially important where the specimen being submitted is something like an invoice, order slip, or other typical company business forms. The key is to somehow make the use of the name distinctively different for trademark purposes that it is when functioning as a trade name.

Remember:
A trademark should never use “Inc.”
Or be tied to an internet link
If the mark’s not pristine
And the specimen clean
Your registration will probably sink

Jon Andersen runs the Andersen Law Firm. He received his Bachelors degree from Purdue University (Go Boilermakers!) and JD degree from Emory University’s Law School. He focuses most of his activity on advertising, marketing, communication and intellectual property matters. His special interests are sweepstakes, contests and promotions, trademarks, copyrights, and advertising/marketing business matters.

Eight years ago, the “Wassup” phrase helped sell millions of cases of Budweiser. Today, it’s being used to help sell a political candidate.

Charles Stone III, who created the original campaign for Budweiser, has revived the phrase in a campaign posted on YouTube. Since Friday, one version of the ad has been viewed more than 2 million times.

Neither Anheuser-Busch nor its ad agency Omnicom can do much to stop the use of the phrase because neither company owns the “Wassup” slogan or concept. At one point, the brewer paid Mr. Stone about $37,000 to license the idea for five years, but that deal expired three years ago. As such, the slogan is arguably Mr. Stone’s to use as he wishes.

In an article in The Wall Street Journal, attorney Douglas J. Wood said, “If First Amendment butts up against copyright law, First Amendment would generally win, particularly when it’s done in a political context.” Since these ads would likely be seen as parody in a court of law, Mr. Stone probably has a case for his right to use the phrase. (In a separate incident, the First Amendment protection of parody helps explain why Al Franken can call Rush Limbaugh a “Big, Fat Liar” and get away with it.)

Reaction to the ad campaign hasn’t been all positive. Comments on the YouTube page where the ad is posted have ranged from support to outrage.

If we recall correctly, the Busch family are staunch Republicans. Should Anheuser-Busch sue to stop the use of the phrase for political purposes?  What’s your opinion?