Understanding the nuances of trademark symbols is essential for businesses seeking to protect their brand identity and intellectual property rights. The symbols ® and ™ serve distinct purposes and carry different legal implications, particularly in the United States and internationally.

Q: When do I use the ® symbol?

In the United States, the symbol ® signifies that a trademark has been federally registered with the United States Patent and Trademark Office (USPTO). Its usage is reserved exclusively for registered marks and serves as a notice to the public of the mark’s official registration. Employing the ® symbol provides several advantages, including the ability to pursue damages or lost profits in cases of infringement without the need to prove the infringer’s prior knowledge of the registration.

However, improper use of the ® symbol can have serious consequences, potentially leading to the loss of registration rights or injunctions against infringers. Common errors include using the symbol with unregistered marks, applying it to unregistered goods or services, or deviating from the registered form of display.

Q: If I have achieved a Federal Trademark Registration, do I have to use the ® symbol?

You do not have to use the ® symbol in relation to your registered mark, but it is highly recommended that you do. If you end up needing to pursue an enforcement action to protect your mark, by not having used it, you may have given up your right to recover lost profits and money damages unless you can prove that the defendant actually knew that your mark was registered before they started infringing.

Why risk giving up damages?! If you have gone to the effort to obtain a trademark registration, update your online content and marketing materials and display the mark with an ® in superscript or subscript next to your mark in all significant references to your mark.

Q: How and when do I use the TM symbol?

For unregistered marks or pending trademark applications, the symbols ™ (for goods) and SM (for services) are appropriate alternatives. While these symbols lack legal significance, they serve as informal notices of trademark claims, helping to deter potential infringers and assert ownership rights. It is my opinion you should only use these symbols if you are actually intending to, or are in the process of, pursuing formal protection of your mark(s).

Q: Is using the “TM” symbol enough? I’ve heard I don’t actually need a registration if I just use the “TM” symbol?

No, the “TM” symbol does not provide actual protection.

While it can help to put others on notice that you are seeking protection of your mark or are claiming proprietary ownership over your mark, it does not provide any actual legal protection and is not sufficient as a defense or in order to pursue infringement of your mark. This is why pursuing a Federal registration that permits you to place an ® next to your registered mark is so important.

Q: Are “TM” and ® Recognized Internationally?

Internationally, the usage of trademark symbols varies across countries, with some jurisdictions recognizing the ® symbol while others require different indicators of trademark registration. For example, “TM” use is popular in the United States and Australia but does not hold much weight within most countries in the EU. Trademarks must be registered in a jurisdiction by jurisdiction basis (i.e. a Trademark registered in the U.S. will not protect your brand in the UK and vice versa). It is crucial for businesses operating globally to familiarize themselves with local trademark (and marking) requirements to avoid legal pitfalls and ensure effective protection of their marks.

Q: What is proper placement of a “TM” or ® symbol?

Proper placement of trademark symbols is also important. Typically, symbols should appear in superscript at the upper right-hand corner of the mark. Alternatively, they can be placed in the lower right-hand corner if necessary. In written materials, such as articles or marketing materials, it suffices to use the symbol with the first or most prominent appearance of the mark.

Overuse of the ® symbol is unnecessary and can clutter marketing materials. Instead, businesses can opt for alternative phrases like “Registered in the U.S. Patent and Trademark Office” or “Reg. U.S. Pat. & Tm. Off.” Additionally, using an asterisk with a corresponding statement at the bottom of the page is an effective way to indicate trademark registration without overburdening the visual presentation.

When in doubt, consult with a Trademark Attorney.

Of course, if you have any questions, or are interested in support with protecting your brand or your mark (or desired mark), get in touch or schedule an initial consultation.

Navigating the complexities of trademark law requires expertise, and consulting with a trademark attorney is advisable to ensure compliance and proper protection of intellectual property rights.

By understanding when and how to use trademark symbols correctly, businesses can safeguard their brand assets and maintain a competitive edge in the marketplace.

DISCLAIMER: THE INFORMATION PROVIDED IN THIS POST MAY CONTAIN LEGAL INFORMATION, BUT DOES NOT CONSTITUTE LEGAL ADVICE. NO RELATIONSHIP, INCLUDING ATTORNEY-CLIENT RELATIONSHIP, HAS BEEN FORMED AS A RESULT OF THIS POST. YOU ARE ADVISED TO SEEK THE ADVICE OF AN ATTORNEY LICENSED IN YOUR STATE IF YOU HAVE ANY QUESTIONS.

© 2024 Heather Pearce Campbell, The Legal Website Warrior®

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