The other day, I was at Target, getting my annual flu shot. The injection didn’t hurt, but I did feel a sharp pain upon seeing an ad promoting Target’s gift cards.
Or, should I say, Target GiftCard™?
I snapped this photo while waiting for my inoculation:
As a reminder, there are two trademark symbols. ® can only be used in the U.S. in connection with a federally-registered mark. ™, on the other hand, is the common law trademark symbol. A registration is not required to use ™. Using it is simply a way of indicating to the public that the word, phrase, or symbol to which ™ is attached is meant to be a trademark, or a source identifier. As opposed to just words in a sentence, or a generic term. Like, say, “gift card.”
Need a refresher on trademarks? Check out my podcast episode on trademark 101
My impression was that Target was claiming trademark rights on the word GiftCard, which is, of course, just the words “gift” and “card” jammed together. That’s why I took the photo the way you see it above. In the top right corner, you can see the word “Target” preceded “GiftCard” if you read this as a sentence.
Target’s website suggests that the intended trademark is for the phrase Target GiftCard:
A search of the trademark office (USPTO) shows that Target actually has trademark registrations for TARGET GIFTCARD and TARGET GIFTCARDS. So they actually should be using ® instead of ™. In both filings, the USPTO required Target to include the following disclaimer: NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE “GIFTCARDS” APART FROM THE MARK AS SHOWN.
So Target is, legally, making no claim that they own the trademark for GiftCard, or any variation thereof, unless the word “Target” is directly in front of it.
Target’s choice to display its mark as:
Target (end of one line)
(beginning of next line) GiftCard™
is, at best, sloppy, and, at worst, deceptive, because it may be understood to suggest that Target is claiming the word “GiftCard” as a trademark that they have the exclusive right to use.
Gift Card, or any variation thereof, is, of course, a generic term. And, as readers of this blog will know, generic terms can’t be trademarks. So you can go ahead and call your gift card a GiftCard or a Gift Card or any variation you like.
