I get a lot of questions about using the TM, SM, ®, and © symbols. Trademark symbols can be confusing, but don’t them intimidate you. Here are four things you should know about how to use trademark symbols to protect your brand and business.
1. What the Trademark Symbols Are
There are three commonly used trademark symbols: TM, SM, and ®.
The trademark symbol (™) is for trademarks that have not been registered, for example: trademarks for products, such as books, household goods, computers, phones, cars, etc.
The (℠) notice is for service marks that have not been registered, i.e. trademarks for services, such as coaching, consulting, educational services, and web-based software solutions, etc.
The ® symbol is reserved for federally registered marks only (state registrations don’t count). It is used for both trademarks and service marks, and is regulated by law.
2. When to Use Trademark Symbols
TM and SM
There is no legal requirement to use the TM or SM symbols, and their use carries no legal significance. These symbols simply put the public on notice that the user of the mark believes they have a protectable interest in it. These symbols don’t prove ownership or create any legal rights, though. Using the TM and SM symbols help prevent others from adopting the same or similar mark for the same or similar product or service, resulting in confusion in the marketplace.
The TM or SM symbol should be used next to unregistered marks—including marks that are the subject of still-pending applications—each time they appear on products, product packaging, advertising, and promotional material, etc. In writing, however—articles, press releases, advertisement, etc.—it is best practice to use the TM or SM symbol only in the first instance of use. This prevents visual clutter. As a rule of thumb, though, over-marking is preferred to under-marking.
The Encircled R
The registration symbol is reserved for marks that have been formally registered in the U.S. Patent & Trademark Office (USPTO). If your mark isn’t registered with the USPTO, not only can you not use the encircled R, bit it’s a big “no no.” You don’t have to use the ® symbol if you don’t want to—it doesn’t diminish your rights—but it’s recommended that you do use it, since it can affect the amount of damages you can collect in a lawsuit if someone infringes upon your rights.
Unlike the TM or SM symbols, use of the registration symbol is regulated by federal law. Hence, it’s important to know the rules and avoid improper use. Deliberate misuse that is intended to mislead others into believing a mark is registered constitutes fraud and is actionable as a civil offense. Innocent misuse arising from a misunderstanding of the rules is not considered fraud, but should be rectified as quickly as possible.
3. How to Use Trademark Symbols
All of these symbols generally appear in the upper right-hand corner of the mark in superscript. If that looks weird, you can put it in the lower right-hand corner in subscript. You shouldn’t put one of the symbols above, below, or to the left of your mark. There isn’t a rule that says you can’t, but you will look like an amateur since it defies convention! 🙂
If you own a federal registration for a mark registered in standard character format—for example, without reference or claim to any particular font, stylization, size, color, or graphic—you may use the registration symbol in any presentation.
If you own a federal registration for a mark registered in a stylized or designed format, you may only use the registration symbol with the mark as it appears in the registration—not when the mark is un-stylized.
4. Why Use Trademark Symbols
The main reason to use trademark symbols is to restrict infringement upon the use of others’ marks, or to provide “constructive” notice of a claim of trademark rights. “Constructive” notice means that the notice is imputed by law.
Failure to use the proper trademark symbol can be detrimental to a mark owner in an enforcement proceeding. If the owner fails to use the registration symbol with their mark, he or she is precluded from recovering lost profits or money damages in an infringement suit unless the defendant had actual, factual notice of the registration—not just “constructive” notice. This small detail may have an immeasurably large impact in an enforcement proceeding and should not be overlooked!
I hope this information is helpful and you have a better understanding of the various trademark symbols, and how to use them properly! Stay tuned for a quick reference guide for the use of copyright symbols, coming soon! Subscribe to my blog to be notified when new posts become available!