IP FAQ: Which trademark symbol should I use?

Demonstrating their protection status is a crucial part of any commercial strategy, and doing this begins with knowing which trademark symbol to use.

What does each trademark symbol mean?

A trademark can be any sign — such as a word, logo or slogan — that identifies your goods or services in the marketplace. The various symbols denote the extent to which a trademark is protected and, occasionally, the type of deliverables it is connected to. The most common are:

• ™: The superscript ™ symbol indicates an eligible piece of IP used in commerce as a trademark. It is usually associated with a mark that is not registered at the national or regional IP office of the territory where it appears. Legally, it signals that the user is attempting to claim IP rights to a given branding element.
• ℠: The service mark symbol has effectively the same function as its ™ counterpart, but can only be used in connection with services (as opposed to products). As with ™, a mark associated with ℠ is generally unregistered. Many jurisdictions simply use ™ for both goods and services, with the United States as a notable exception.
• ®: The superscript "circle R symbol" confirms official registration with a trademark office. It is not to be confused with the similar copyright symbol, which is a C inside a circle, and the audio copyright symbol, which is a P inside a circle (for "phonogram").

Understanding the differences: registered vs. unregistered trademark

Using an unregistered mark in commerce may grant limited common law protection, but a registered trademark carries stronger legal rights, with broader geographical scope, once approved by a national or regional authority such as the United States Patent and Trademark Office (USPTO) or the European Union Intellectual Property Office (EUIPO).

In essence, what this means is that the holder of an established but unregistered trademark might be able to prevent another entity from using a similar mark for the same goods or services in the specific area they operate. This would come down to proving who started using their mark first and whether the younger mark would create unfair competition.

In contrast, a registered trademark is considered prima facie evidence of ownership and a right to exclude others from employing a similar mark for specified goods or services in that jurisdiction.

As an example, a small local café might display ™ alongside "Morning Roast" to indicate it is claiming the name as a trademark, even though it has not yet been officially registered. Meanwhile, a global coffee chain might have ® next to a more distinguishing name like "Beans, Steam & Cream" to show that the mark is formally registered and legally protected in the various countries where it appears. 

Though a registered trademark is not immune to infringement, the chances of receiving legal remedy are greatly increased by this status. Not only that, but bad actors can be discouraged from committing transgressions by the likelihood of effective lawsuits being taken against them.

Using ™ and ® correctly

The ™ symbol can be used without formal registration to show that you are claiming a trademark, even if your mark is still pending approval or limited to a local market. The ® symbol, on the other hand, indicates an officially registered trademark recognized by a government body. Using ® prematurely or without registration can violate the law, as this can be considered a misleading business practice or even fraud.

Whether or not to register a trademark often depends on your business goals and growth plans. The ™ symbol may suffice while testing a new business name or product line. However, registration offers wider-ranging and more enforceable legal protection, especially if your company intends to expand internationally. Working with an expert trademark attorney can help you evaluate your strategy and file a proper trademark application that supports long-term brand success.

Once you are confident in when and how to use the ™ and ® symbols, the next step is securing registration itself.

How to register and maintain a trademark

The first formal step in the trademark registration process is filing applications in jurisdictions where you do business. You must also search trademark databases to help ensure your mark is not excessively similar to one already registered for the product or service types you are interested in. National and regional offices provide online tools to carry out this background research.

From there, a typical trademark application includes:

• A description of the mark
• A drawing or visual representation (non-visual marks are increasingly available)
• The Nice classes of the exact goods and services designated

Next, it is time to file and pay all appropriate fees, usually defined by the number of classifications covered. While you wait for a determination, be prepared to answer any questions or requests from the registering office.

If the jurisdiction where you receive your initial registration is one of the 116 contracting parties to the Madrid Protocol, you can subsequently extend your registration to cover up to 132 countries through the Madrid System administered by the World Intellectual Property Organization (WIPO). A single basic fee is all that is required, with a 90 percent discount for trademarks originating in the least-developed countries. However, because domestic law always takes precedence over WIPO rules and IP treaties, obtaining separate trademark registration in the jurisdictions most relevant to your brand is the best way to achieve thorough protection.

Registered trademark rights can last indefinitely if renewed at the defined intervals: every 10 years in the vast majority of cases. This procedure will always involve a maintenance payment, but may also require a declaration of use or other affidavit. By staying on top of these renewal obligations and following all rules regarding trademark symbol usage, the mark and all rights relating thereto will remain in force.

Comprehensive trademark management requires observing renewal dates across all jurisdictions and remaining vigilant for unauthorized use. In this, an IP full-service provider can alleviate the administrative burden of tracking regulations and due dates internationally and provide the legal weight to discourage and counter infringement.

Want to learn more about the correct usage of the trademark symbols? Need an IP attorney or other legal service? Contact the Dennemeyer team today.