There are a few different trademark symbols out there, and using them properly can be pretty crucial for your business. For example, if the owner of a federally registered trademark uses the ® symbol, then anyone who infringes on the mark will be considered to have “constructive knowledge” of the mark’s registration. Meaning that even if they didn’t actually know your mark was registered, courts will still conclude the infringer should have known the mark was registered.
In other words, a court will always hold that an infringer had prior knowledge of your mark if you properly used the registration symbol.
So let’s make sure you know when to use what!
What’s the Appropriate Symbol
TM or SM are for unregistered marks only. Use TM for marks that represent goods and SM for marks that represent services. If your mark covers both goods and services, use TM.
The federal registration symbol, ®, is only for marks registered with the USPTO. Don’t fool around with this. If your mark is not registered with the USPTO then do not use the ® symbol next to your mark.
When to Use the TM and SM Symbol
Using the TM or SM symbols doesn’t actually have any legal significance. But it’s definitely a smart idea to use them because it notifies the public (and competitors!) that you’re claiming trademark rights. That hopefully dissuades others from using a similar mark for the same or similar products or services.
When to Use the ® Symbol
You’re only allowed to use ® the symbol with a federally registered mark for the goods/services specified in the registration.
While you’re not legally required to use the ® symbol, you should. In a trademark enforcement action, not having used the ® symbol essentially gives up your right to recover lost profits and money damages unless you can prove the defendant actually knew that your mark was registered before they started infringing.
Avoid Getting in Hot Water With the ® Symbol
The only defense to using the ® symbol inappropriately is that your unauthorized use was an honest mistake. As in, for example, the USPTO canceled your mark without your knowledge.
Using the right trademark symbols tells the world that you’re claiming trademark rights, which hopefully will deter competitors from using the name for their business.
How To Use Trademark Symbols
The appropriate symbol should appear in superscript in the upper right-hand corner of a mark. If that’ll look awkward, then drop it to the lower right-hand corner of the mark. Never place the symbol above, below, or to the left of a mark. You’ll probably be relieved to know that in things like articles, press releases, and marketing materials, you only need to use a symbol in the first instance the mark appears in, or with the most noticeable appearance of the mark. Simple.
Since overusing the ® symbol doesn’t offer additional legal protection, why clutter up your materials?
Instead of using the ® symbol to indicate your trademark rights you can use the phrase, “Reg. U.S. Pat. & Tm. Off.” or “Registered in the U.S. Patent and Trademark Office.” Or you can put an asterisk next to your logo, where the asterisk refers to a phrase at the bottom or side of a page, for example: “Reg. U.S. Pat. & Tm. Off.” or “_____ is a registered trademark of _____.”
Trademarks Have Lots of Rules
It’s always a good idea to consult with an attorney that practices trademark law so you can do things the right way the first time.