| By :
Wendy Moyer
A trademark, which is sometimes called a service mark, a trade name, a trade dress, etc, is a distinctive mark that a manufacturer uses to both distinguish their goods from others' as well and to symbolize its authenticity. A trademark can include symbols, words, designs, names, and more. And it could be a combination of a number of different design elements. In order to be valid registration is not required on either a state or a federal level. However, if a trademark is registered at the federal level it is often accompanied by a symbol like ®. If not, it may have a symbol such as ™ attached to it. Service marks can be lost if they are not used. And, in order to be valid, a trademark has to actually be used in trade. Companies may also use marks in conjunction with services along with their goods. Marks can consist of packaging, building designs, etc. When a mark is registered its specific category of services and goods has to be identified. The registration will then only protect the mark for those particular classes of use. It is prohibited to use images, words, etc, that have been trademarked if it's likely that the use will confuse people pertaining to the authenticity or origin of the product(s). However, non-commercial or descriptive uses of names and trademarks could be permitted under the doctrine of fair use. If you are a photographer you may be wondering if you can take pictures that show buildings which are registered trademarks. If you are taking the photographs from public vantage points then you have the right to take your pictures. For the most part you will be able to use these pictures for editorials. None-the-less, if you are submitting the photos for publication, you should note that you don't have any permissions or releases. And, if you can, you should have your client indemnify you against any claims that might arise from their using your photograph. Keep in mind that third party rights violations are mostly the result of the use of the image rather than the image itself. And, once you've agreed to license the photograph you will no longer have any control over how it will be used. If your photograph contains trademarked images and your photo will be used for commercial purposes there is no set answer as to whether or not you will be violating trademark rights if it is used. It comes down to the details of how it will be used and what the usage will look like.
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