Looking to protect your brand? When to use the “TM” and “®” symbols.

Trademark + IP

Apr 20

Protecting your brand is a key component of your business. Trademarks are any word, phrase, symbol, design, or combination of these things (“mark”) that identifies your goods or services – it could be a brand of your business or even your business name. Have you seen different businesses use different types of trademark symbols, such as the TM or ® symbols? One question often asked is what is the actual difference between using the TM symbol and the ® symbol, and when should each be used.

These symbols should only be used on your trademarks, not any other form of intellectual property. The symbols are important to use to notify others that you are claiming rights to the mark. To enforce trademark rights it has to be apparent that others have notice of your trademark rights.

Both symbols are used as superscripts next to either the written or design mark. If you are using the mark in text it would appear as yourmarkTM or yourmark®. But these symbols can also be included in your logo or design marks as well (and should be included if your mark is USPTO registered)!

Fun fact: The TM symbol or the ® symbol should NOT be included in a trademark application.

Now let’s look at the differences between the TM and ® symbols.

TM Symbol

Fun fact, the TM symbol technically does not have any real legal significance. You actually become a trademark owner as soon as you start using your trademark, but your rights are limited unless you file for a USPTO registered trademark. That said, the TM symbol can still be a helpful tool in establishing a brand or business name or slogan.

Using the TM symbol can be helpful to dissuade others from adopting the same or similar mark for the same or similar products or services, thus helping to protect your brand or business! The TM symbol is used as a tool to put the public on notice that you consider to have rights to a mark. You can use the TM symbol even you haven’t filed a federal trademark application with the USPTO (United States Patent and Trademark Office).

All trademarks have what are called common law rights. Common law trademark rights mean that you have the right to use the mark and can potentially prohibit others from using the same or similar marks. However, your rights are usually limited to your geographical area, and you have to prove that the infringer had knowledge of your mark. This is where the TM symbol comes into play. If you’re using the TM symbol, it’s like a public notification that you are going to claim ownership rights.

Fun Fact: You’re never required to file a USPTO trademark, but it can be beneficial as it gives you broader rights and protections.

® Symbol

On the other hand, the ® symbol can only be used after a mark has been fully, federally registered with the USPTO. It’s important to note that just filing the application does not mean you can use the ® symbol either. The mark must be through the approval process and officially registered before you can use the ® symbol. Do NOT use the ® symbol until your mark is registered – it is a violation of federal law if you use it before registration, and could result in the refusal of your registration.

If your mark is registered, it is important to use the ® symbol, so you don’t forfeit any enforceable rights if someone infringes on your mark. This helps ensure others are aware of your trademark rights, so if you use it you don’t have to prove that the infringer had notice of your rights – it is inherently assumed you have those rights.

What about the SM symbol?

This SM symbol is for service marks. It is used in the same way as the TM symbol, however, most often the term trademark refers to both trademarks and service marks – the SM symbol is more of a technical thing. Even though technically using the SM symbol is the correct symbol if your mark is used for services, using the TM symbol is just fine.

Want to learn more about trademarks – click here.