No doubt you have seen TM, ®, or SM after a name and wondered what that means. It’s important to know what they are and when it is appropriate to use them. Trademark symbols identify the legal status of a brand name or logo. The primary purpose is to inform the consumer. The symbol lets you know that this is an established brand.
There are three main trademark symbols:
- ® (Registered Trademark): This circled R represents the strongest form of trademark protection. In the USA it is used to identify a mark officially registered with the U.S. Patent and Trademark Office (USPTO). Registration grants exclusive rights to the owner for using the trademark for specific goods or services. A business cannot use this symbol if the trademark is not registered.
- TM (Trademark): This symbol indicates that the owner is asserting a claim to the trademark. The TM symbol serves as a warning to other businesses that the user is asserting rights over the mark and intends to protect those rights. In the US, there are considerable protections to unregistered trademarks under various statutes and common law. Therefore, the use of the symbol “TM” is a warning to others – don't tread on this mark. While there is no guarantee to the user that they will prevail in court, it is absolutely a way to publicly assert rights to the mark. This symbol may also be used as a placeholder while the user seeks formal registration with the USPTO. That process can take years.
- SM (Service Mark): This symbol functions similarly to the TM symbol, but for service-based businesses. You will see this associated with businesses that provide professional services, such as accountants, lawyers, consultants, and others. Use of the SM symbol is an assertion of rights to a slogan or logo associated with the service business. Service business can also use the “TM” symbol, but again, this is a clear identifier of a service-based business. Remember, the underlying policy of ‘marks’ is to identify a business in the marketplace and distinguish it from others.
If you do not intend to seek registration through the USPTO, but want to exclude others from using your mark, you may want to consider using the TM or SM symbol. If there is a later dispute over the use of the mark, all efforts that you have made to protect your brand will be relevant.
The use of the ® symbol is only appropriate when you have a registered mark.
There are advantages to registration. Trademark registration opens the door to important enforcement tools against would be infringers. A registered mark can be recorded with Customs and Border Patrol (CBP) who can assist with keeping infringing products from entering the USA. There are also legal remedies available to registered marks along with access to the federal court system.
Registering a trademark is more complicated than filling in a few forms. Marks can be rejected for a variety of reasons. Consulting with an experienced attorney can improve your chances of a successful registration. Remember that the process can take years, and you may receive one or more “Office Actions,” which are essentially questions from the examiner to clarify the scope of your mark.
If you are considering registering a trademark or otherwise need assistance with brand protection, contact Amy for consultation on how she can help.
