Trademark marking is the use of a legally prescribed or commonly known symbol to identify a slogan, logo, design, word or color as a trademark or service mark. There are three commonly used marks: TM, SM and Ⓡ. It is important to understand what each mark means and how to use them properly.
Trademark Symbol Meanings
The mark TM stands for trademark, which is a mark that represents goods. The mark SM refers to a service mark, which is a mark that identifies the source of a service rather than goods. These two marks alert the public to a claim of common law rights and can be used even if no registration application has been filed with the USPTO.
The Ⓡ mark, on the other hand, indicates that a mark has already been registered with the national trademark office. Use of this symbol is regulated by federal law and is only allowed after the USPTO has actually registered the mark, not while the application is pending.
Understanding the Benefits and Risks
TM or SM designations inform the public of the owner’s intent to use the word, logo, design, etc., as a mark. When owners use TM or SM, they make known their claim to branding rights and dissuade others from adopting similar marks for similar products and/or services. That said, owners who use TM or SM designations should be aware that using one of these common law symbols does not guarantee the mark will be protected under federal laws.
Federal registration of a mark is not a requirement, but it does offer several benefits that the TM and SM designations do not. These include the following:
Public notice of mark ownership
Exclusive rights to use the mark nationwide
The ability to bring an action in federal court regarding the mark
A basis for obtaining registration in foreign countries
The ability to file the registration with the U.S. Customs Service to prevent infringing items from being imported
Neither is it a requirement to use the Ⓡ mark once it is issued, but using the mark provides the owner with extra protection. For example, in the U.S., failure to use the Ⓡ mark can prevent a plaintiff from recovering damages and profits in a lawsuit for infringement if the defendant can prove they had no actual notice of the registration. Obviously, using a registered mark is just as important as completing the registration itself.
How to Use a Trademark Symbol Properly
The appropriate trademark symbol should always appear in superscript next to the mark in the upper right-hand region. If that is not possible for aesthetic or other reasons, it should be placed in the lower right-hand corner. While placement of the mark is not specifically regulated by law, it is best to adhere to these standards.
These are just a few basic guidelines when it comes to trademark markings. As a qualified trademark attorney, I would be happy to assist you with any questions or concerns you might have regarding the use of federally registered or common law trademark symbols.
Kelly G. Swartz is a patent attorney licensed to practice in front of the United States Patent and Trademark Office and in the state of Florida. She limits her practice to intellectual property law including patent, trademark, copyright, and trade secrets.