Trademark Symbols and Their Meanings
There are three different trademark symbols, each with their own individual meaning and use: ®, ™, and SM. It is important to understand the differences, in order to ensure their proper use. The Ⓡ symbol can only be used once a trademark has been federally registered with the United States Patent and Trademark Office (USPTO), while the ™ and SM symbols can be used any time there is actual use of a trademark, even if the trademark for goods or services is not registered with the USPTO.
What is a Trademark?
Trademarks are used to identify and distinguish businesses in a competitive marketplace. The most common types of trademarks are logos, names, designs, or slogans, although a trademark (or “mark”) can be a combination of any of these things. A trademark is one of the four main types of intellectual property (or “IP”), including copyright, patents, trademarks, and trade secrets. Like other types of intellectual property, trademarks are intangible assets that have legal property rights.
Trademarks are protected on a first-come, first-served basis in the United States. Whoever registers a mark in connection with specific goods or services first has priority over that mark – subject to certain nuances. Trademarks are protected by federal law, state statutes, and common law in the United States. The federal trademark statutes are encompassed in the Trademark Act of 1946. State statutes vary by jurisdiction. To learn more about common law trademark protection see our post on common law trademarks.
To be protectable, a trademark must be distinctive and it must associate the mark with a particular source. This means that the mark must be used in connection with a business’s specific objective. A trademark must be used in commerce, indicate the source of the good or service, and distinguish those goods or services from others. In short, trademark rights arise from these four factors:
- First use
- A distinctive mark
- Used in commerce
- Used in connection with specific goods or services
Keep in mind that having a trademark simply protects your legal right to use that mark in connection to a particular good or service. It does not prevent others from using the same mark in connection to other goods and services. As the USPTO describes, “A common misconception is that having a trademark means you legally own a particular word or phrase and can prevent others from using it. However, you don’t have rights to the word or phrase in general, only to how that word or phrase is used with your specific goods or services.”
What are the Different Trademark Symbols and Their Meanings?
The three symbols associated with trademarks are Ⓡ, ™, and SM. The type of symbol used will depend on the nature of the goods or services provided and the trademark’s legal status. It is important to note that “trademark” typically describes a mark in connection with a business that trades specific goods, while “service mark” describes a mark in connection with a business that provides a service.
The Ⓡ Symbol
First, the Ⓡ symbol stands for "registered trademark". It is generally considered as the strongest indicator of trademark rights, and provides the most rights and protection. The Ⓡ symbol signifies that a trademark or service mark has been federally registered with the USPTO. This requires filing an application with the USPTO. Once a trademark is registered by the USPTO, the owner has the presumptive priority to use the mark across the entire United States, and the Ⓡ symbol may be applied to the goods or services. See our post about the steps to the trademark process to learn more.
While federal registration is not necessary to own or enforce trademark rights, there are many benefits to registering a trademark with the USPTO. Some of those benefits include nationwide use – unlike common law rights where trademark rights are limited to a certain geographic area. Federal registration can also help ease difficulties with litigation and online enforcement.
Application for a federal trademark can be based on use if the applicant is currently using the mark in commerce, or “intent-to-use” if the applicant intends to use the mark in commerce but has not yet started doing so. If the application is based on intent-to-use the applicant must still submit proof of use of the mark in commerce before a registration will be issued.
After filing an application with the USPTO, an examining attorney will review the application to see if it meets the federal trademark requirements. If approved, a certificate with the official registration will be issued and you can begin using the Ⓡ symbol in connection with your trademark. This entire process typically takes around 12 months.
The TM Symbol
The ™ symbol stands for "trademark" and signifies common law trademark protection. This symbol is appropriate when tied to physical goods.
While the ™ symbol notifies competitors that the symbol is used in connection with a specific business’s goods, it does not confer or indicate federal trademark legal rights. A common law trademark, indicated by ™, is only protected in the specific geographic region where a company conducts business using the trademark. In contrast, a federally registered trademark, indicated by the Ⓡ symbol, is protected across the entire United States, regardless of where the company actually conducts business or actually uses the trademark.
The SM Symbol
The SM symbol stands for "service mark" and indicates that a trademark is being used in connection with a specific service (e.g. legal services, accounting, dog walking, etc.) rather than goods. Similar to the ™ symbol, using the SM symbol does not require registration with the USPTO. This means that the SM symbol does not indicate possessing federal trademark legal rights, but rather signifies that a business is claiming their trademark for use in commerce with respect to a specific service.
Which Trademark Symbol is Right for Me?
The type of trademark symbol appropriate for your business will depend on the nature of the goods or services being provided and the trademark’s status with the USPTO. Which symbol you choose is a serious matter, as using the wrong symbol can have negative legal consequences.
Importantly, the Ⓡ symbol can only be used after officially registering a trademark with the USPTO. According to U.S. trademark law: “Improper use of the federal registration symbol, Ⓡ, that is deliberate and intends to deceive or mislead the public or the USPTO is fraud.” (Trademark Manual of Examining Procedure §906.04).
The ™ symbol may be appropriate if your business has a registered trademark application pending with the USPTO (prior to actual registration), or you are not pursuing or cannot obtain a federally registered trademark for goods sold by the business. Similarly, the SM symbol may be appropriate if your business is waiting on USPTO trademark registration, or you are not pursuing or if you cannot obtain federal trademark registration. However, the important distinction is that the SM symbol is used in connection to services rather than goods.
If you are deciding which trademark symbol is appropriate for you, have questions about the trademark application process, or would like assistance completing trademark due diligence, please contact the BCR Firm to start a conversation and learn how we can help you.
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