What is the Penalty for Wrongly Using the (R) Symbol?

EPGD Law Trademark Symbol

What is the ® Symbol in Trademark Law?

The ® symbol is a registration symbol of a trademark. This symbol serves to signify that a particular brand is registered with the federal USPTO office. A simple application to have your trademark registered with the USPTO does not give you the right to use the ® symbol until the trademark has been officially registered. 

When the trademark has been officially registered, the use of the registration symbol serves as notice to others that a certain name or brand has been federally registered and cannot be used by another entity.

Can I be Punished for Using the ® Symbol in Florida?

According to §906.04 of the Trademark Manual of Examining Procedure, “Improper use of the federal registration symbol that is deliberate and intended to deceive or mislead the public is fraud.”  The Trademark Manual does, however, distinguish “misunderstandings about use of federal registration symbols” from fraud or intent of fraud. The Manual states that “misunderstandings are more frequent than occurrences of actual fraudulent intent.”  

However, when the registration symbol is used with an intent to deceive the audience, it can have serious legal consequences.

What Is the Penalty for Copyright Infringement in Miami?

Generally, a claim of copyright infringement is brought in civil court. To get the defendant sanctioned, the plaintiff would have to prove 3 things:

  1. A valid copyright existed
  2. Evidence of copying the work
  3. That the copying of the work was “substantially similar” to the protected product.

The court conducting this comparison typically would look at it from a viewpoint of a layman and not a professional. Among the possible sanctions that a court may impose for improperly using the ® symbol are either actual damages and profits from using the ® symbol or statutory damages. To be awarded the profits from the infringer’s usage of the ® symbol, the copyright owner would have to present proof of the infringer’s revenue. 17 U.S.C. § 504(b). The copyright owner may, instead, choose to pursue statutory damages, which have to be “not less than $750 or more than $30,000 for each work infringed upon”. 17 U.S.C. § 504(c)(1). The court in every case will determine what is the appropriate amount of damages.

Is There a Defense to Copyright Infringement of Intellectual Property?

The short answer is yes. Under 17 U.S.C. § 107, a court could minimize damages if it finds that there was a “fair use” of the copyrighted work. There are many types of use that may qualify as “fair”. Some examples include use for research, comment, parody, reporting, etc. When conducting this balancing test, a court would look at the nature of use, the nature of the work itself, the portion of the work used and the effect of the use on the market value of the work. 

With respect to the wrong use of the ® symbol, the defendant may argue that the use was “erroneous”. To disprove that, the plaintiff would have to convince the court that there was an intent on the part of the defendant to mislead the public by using the registration symbol.

EPGD Business Law is located in beautiful Coral Gables, West Palm Beach and historic Washington D.C. Call us at (786) 837-6787, or contact us through the website to schedule a consultation.

*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*

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