ABSTRACT
Theoretical accounts of trademark law suggest that trademarks serve multiple marketplace functions, including protecting consumers and producers from unfair dealing, reducing consumer search costs, and incentivizing higher quality goods and services. Producers of goods and services often use the ‘TM’ symbol to signal their assertion of legal rights in a mark, arguably helping advance these goals.
But recently, an interesting phenomenon has arisen in which individuals not engaged in typical commercial activities have been using the TM signifier in ways that don’t necessarily correspond to the symbol’s legal function. These so-called ‘extra-legal’ uses of the TM symbol can offer insights into how ordinary people understand trademarks; there is also a question of what the appropriation means, if anything, for the efficient functioning of trademark law.
To better understand these extra-legal uses of the TM symbol, we collected data from various social media and text messaging platforms, online discussion boards, and real-world uses. We found that speakers invoking the TM symbol often leveraged the linguistic, cultural, and legal connotations of the symbol to achieve a variety of expressive and creative ends. Overall, we observed that speakers using the TM symbol in expressive speech had a surprisingly sophisticated understanding of the linguistic and semantic functions of the symbol. This understanding and leveraging of the interrelated meanings of the TM symbol allowed for a flourishing of creativity and a level of sophisticated and nuanced discourse that otherwise might be difficult to achieve in an online format.
The widespread adoption of the TM symbol as a vehicle for expression is not entirely without risks, however. We draw analogies to existing trademark law and doctrines to explore these potential harms, including the risk that consumers and producers will be confused by these expressive uses and the risk that the legal significance of the mark will be ‘diluted’ by competing uses. Though we find these risks are real, we conclude that they are outweighed by the social benefits that flow from allowing speakers to use the TM symbol in expressive ways. This conclusion informs how trademark law should handle these uses going forward.
Asay, Clark D and Hingson, LaReina and Plamondon, Stephanie, Extra-Legal Uses of TM (March 21, 2024), NYU Journal of Intellectual Property and Entertainment Law, Forthcoming; BYU Law Research Paper No 24-14.
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