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Trademark Disclaimer: Everything you Need to Know

What is a Trademark Disclosure?
A trademark Search disclaimer can be a statement that is placed in a trademark registration or application to show that the owner does not claim rights to any portion of the trademark. These words are usually generic, descriptive, or informational.
Why is a Trademark Disclosure Important?
The United States Patent and Trademark Office will see that you don’t request exclusive rights to a term not allowed to be registered under law. If you have two companies applying for similar trademarks and your company denies the use of words that cannot be registered, the trademark office will likely approve your application. A disclaimer can also be helpful in court cases involving trademark disputes.
Here are some reasons to not use a trademark
Sometimes, the trademark office may request a disclaimer. However, the company might want to decline the request. Consider Joe’s Diner, for example. “Diner” is usually not a term that a business can register. There are many businesses with “Joe”, as part of their names. Joe’s Diner might refuse to sign a disclaimer when the trademark office requests it. Joe wants his diner stand out from the rest of the businesses that have “Joe” in their names. These cases require that the applicant consult a trademark attorney to determine how to proceed.
Use of words that can’t be registered
Unregistered words can be used to describe the business or help distinguish the company from others with similar names. These words can be generic but they are necessary. An applicant may claim that the mark “unitary” in certain cases. This means that the entire trademark (including descriptive or generic words) creates one impression for consumers. A disclaimer does nothing to remove words from the proposed trademark.
Examples — How to Use A Trademark Disclaimer
Disclaimers to Third Parties Standard
• All company and product names are trademarks ™ or registered trademarks of the respective owners. They are not to be used in association with or endorsement of any other company.
• ABBEY ROAD, and the ABBEY ROAD Logo are trademarks owned by EMI (IP) Limited. They may be used under license.
• UDG is a trademark owned by UDG USA Inc. Registered in the U.S.A. and other countries. Used with permission.
Create a strong trademark
• Use strong keywords to describe your products and your industry in your trademark.
• Images that are original should be used. Avoid using drawings that might point to similar products.
Common Mistakes
What to declare
• Your trademark may include parts that are generic, descriptive or not unique.
• Your trademark may contain parts that infringe on another company’s trademark.
• You cannot register parts of your company name.
Too generic
• Your trademark should not be designed in a way that could cause some words to become generic descriptions for your product. Otis lost its trademark for the escalator because it advertised the moving stairs as the “newest in elevator and escalator design”. Otis’ description of its product was generic, and competitors could use it as well.
Too much information
• Disclaimers can be filed by anyone who files an application. Most often, rejections are caused by the owner of the trademark who files the application and includes too many material. Sometimes, however, they are also caused by trademark attorneys filing the application.
Steps to File
When it decides that a disclaimer may be required, the trademark office will notify trademark applicants. Complete the Trademark Electronic Application System Response to Office Action online form to submit a disclaimer.
Most Frequently Asked Questions
• What are the most common disclaimer requests?
Records show that around 30 percent of trademark applications received disclaimer requests from the trademark office in the 30-month period 2008-2010. The requests were generally sent to companies who didn’t employ trademark attorneys. Post your request to search for a trademark lawyer and receive matched with top 5% lawyers. You can also save 60% using UpCounsel
• Can you fight a disclaimer request successfully?
It is costly to fight a disclaimer. It can sometimes be successful. Louisiana Fish Fry Products, for example, lost its second appeal in 2015 to overturn a requirement that the trademark be removed from “Fish Fry Products”. According to the company, the term “acquired distinctness” meant that consumers would associate it the source of the products. Two courts disagreed and ruled that the term was descriptive.

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