How to Use Trademark Symbols
A mark that identifies the source of goods or services is commonly referred to as a trademark. You’ve probably seen tiny symbols next to trademarks; the TM, SM, and Ⓡ symbols. These symbols are used to convey trademark ownership. It’s important to use the right symbol with the right type of mark. Here’s a quick summary of how each symbol is used.
The TM and SM symbols
The TM (“trademark”) symbol and SM (“service mark”) symbol can be used to give notice of your claim to common law trademark rights. Common law refers to the body of laws created by court decisions. Under common law, trademark rights are established simply by using a mark in connection with goods or services for sale. There are no registration or fee requirements to obtain common law trademark rights.
Common law trademark rights are based on a first-to-use system. A business first to use a mark has superior rights to the mark in the geographic area of use. Thus, between two businesses using similar trademarks for similar goods or services in the same geographical area, the first business to use the trademark in commerce can stop the second business from using the mark if it acts in a timely fashion.
The TM symbol is used next to marks related to goods. The SM symbol is used next to marks related to services. Many people are unfamiliar with the SM symbol and it is commonplace to see TM symbols used for marks related to services. If you use TM next to a mark identifying a service, your trademark rights will not be diminished and trademark police will not break down your door. However, you may receive a stern eyebrow-raising from a pedantic lawyer like myself.
The Ⓡ symbol
The R in a circle symbol indicates federal registration of a trademark. In the United States, a trademark owner may use the Ⓡ symbol next to a mark only if the mark:
- is registered with the U.S. Patent and Trademark Office; and
- is used to identify the goods or services listed in the trademark registration.
Filing a federal trademark application is not enough; the trademark application must be approved and listed in the federal trademark registry. Even after the mark is registered, the trademark owner must be careful to only use the Ⓡ symbol in conjunction with goods and services listed in the trademark registration. Any other use of the Ⓡ symbol is not permitted. For example,
- DO NOT use the Ⓡ symbol if your trademark application is still pending in the U.S. Patent and Trademark Office.
- DO NOT use the Ⓡ symbol if your trademark is only registered under a state registration.
- DO NOT use the Ⓡ symbol in connection with goods or services not listed in the federal trademark registration.
Misuse of the Ⓡ symbol can potentially expose you to a false advertising lawsuit, prevent you from asserting a trademark infringement claim against a competitor, and bar registration of your mark in the U.S. Patent and Trademark Office.
While use of the Ⓡ symbol for federally registered trademarks is not required, proper notice of federal registration allows the trademark owner to recover profits and damages in an infringement lawsuit. When the trademark owner fails to give notice that the mark is federally registered, the only remedy available is an injunction to stop future infringement unless actual notice by the infringer can be proven.
The Ⓤ symbol
This is not a trademark symbol at all but rather a symbol to identify kosher foods. Interestingly, the Orthodox Union Kosher owns the Ⓤ trademark and enforces its kosher certification requirements under trademark law. If you use the Ⓤ symbol on your goods without authorization from the Orthodox Union Kosher, expect to receive a cease and desist letter from their trademark attorney.
In a document, the appropriate trademark symbol should be used with the first occurrence of the mark and any prominent uses of the mark thereafter. Trademark symbols used too frequently in a document are distracting to the reader and clutters the document.
While most trademark symbols are placed on the upper left corner of a logo, trademark symbols can be placed anywhere next to the mark. If you are working with a professional designer, let them know that you intend to include a trademark symbol with your logo. A professional designer can incorporate the appropriate trademark symbol in a more visually pleasing and balanced way rather than as an afterthought.
The biggest takeaway in this article is not to use the Ⓡ symbol unless you have a federally registered trademark. When the Ⓡ symbol is unavailable, the SM symbol can give public notice that a mark is used as a trademark for a service under common law and the TM symbol can notify the public that a mark is used as a trademark for goods under common law.