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  • David Vance

Marking Requirements

The other day I was reviewing a client's sales brochure and was pleased to see that the trademarks listed all contained an ® next to them. That got me thinking that perhaps a quick reminder regarding marking requirements would be helpful.

Patents: Do you have an issued utility patent or design patent? If yes, then you will want to mark your product. Product marking puts the world on constructive notice of your patent and this makes it easier to collect for infringement damages. For utility and design patents, one can mark by putting the patent number on the product. "Patent" or "Pat" needs to be included, followed by the number. If it is a design patent, then the "D" designation also needs to be included. Some examples are shown below.

Patent: 1,234,567

Pat: US 1,234,567

Patent: D US 123,456

Pat: D US 123,456

The mark can be anywhere on the product, or even the packaging, if the product isn't easily marked (e.g., a consumable). You've probably seen patent numbers listed on tools, kitchen appliances, etc. That marking shows a competitor that your product is patented. Another way to mark is virtually by listing a website on your product. That website can then list all of your products (e.g., via their SKUs) and their corresponding patents. This might be an easier way to mark if you're continuing to add patents to your portfolio. Just like with listing the patent number, the website must still be preceded by "Patent" or "Pat" (see below).



Trademarks: For a trademark, your mark should be followed by an R inside of a circle, ®. This is only for registered marks. Also, don't forget, your trademark is an adjective. Use it with the product name (e.g., Rebellious® Eggplants), not by itself. When a trademark application is pending, one can use the ™ (SM for service marks); however, these have no legal meaning.

Any questions? Email or call me. Let's make sure you're properly marking all of your products.

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