The importance of protecting a business’ brand using available trademark laws is commonly known, but have you ever wondered why certain companies use the trademark symbol (™) to signify their rights to a particular mark while others use the registered symbol (®)?
There’s a lot of confusion about the meaning and appropriate use of these two symbols in the United States. The following serves to shed some light on this convoluted matter from the perspective of an experienced Trademark Attorney.
Here in the US, the ™ symbol (or SM for a service mark), which essentially stands for “Trademarked”, represents logos, names, phrases or other words and designs that are intended to represent a particular business but have not been formally registered. Alternatively, the ® or “Registered” symbol is used to reflect that a mark has actually been registered with the United States Patent and Trademark Office (USPTO).
The Trademark Symbol (™)
Despite widespread belief, these two symbols have different meanings and may not be used interchangeably. In fact, the ™ symbol does not necessarily have any specific legal meaning other than to put others on notice that the particular mark is intended to be used by the business (whereas the use of the ® symbol affords significant protection to the subject mark).
This symbol is typically used adjacent to a mark without the mark actually having been registered with the USPTO.
Practically speaking, the ™ symbol is customarily used prior to a business formally attempting to register the mark for purposes of indicating its intent to do so. It is essentially a way for a business owner to stake a claim in the intended mark and put others on notice.
It should also be noted, however, using the ™ symbol does not protect a business owner against the liability of infringing on someone else’s right to the mark. For example, if the proposed mark is substantially similar to another business’ trademark, using the ™ symbol will not protect the infringing user from liability and the owner of the registered mark may take legal action against the infringer.
Therefore, it is always wise to research your mark prior to using the ™ symbol to fully benefit from its protection according to US trademark laws.
The Registered Symbol (®)
Despite the protections provided by using the ™ symbol, having an actually registered mark is far more beneficial to business owners. A properly registered mark serves several important purposes to any small business, including, but not limited to, the following list:
- Registration of a mark provides a business owner with the exclusive rights to use and operate under the subject mark by precluding other companies from having similar marks.
- In the event a mark is infringed upon and a court case ensues, the burden of proof that must be proven by the owner of an unregistered mark far exceeds that of the owner of a registered mark. As business owners of registered marks are the presumed owners of the mark, they benefit from the diminished burden of proof.
- Obtaining a registered trademark ensures that a business’ brand is not substantially similar to any other registered trademark and, therefore, does not infringe on any other registered mark owner’s rights. Such infringement, even though unintended, may be detrimental to a small business in that the infringer may be liable for legal fees or be ordered to forego all profits earned through the use of the unregistered mark. Not to mention, the added expense and headache of having to rebrand the business.
- Adding the ® symbol to a business’ mark reflects a level of sophistication that may add to the monetary value of the brand.
- If recorded with the U.S. Customs and Border Protection, having a registered mark can prevent counterfeit goods from being imported and circulated in the US marketplace.
- Having a federally registered trademark allows businesses to obtain foreign trademark registrations with greater ease than otherwise.
While registering a trademark is not a requirement under US law, failing to do so puts a business at risk of both being infringed upon or unintentionally infringing on others.
Aside from understanding the importance of actually registering a business’ mark, it is important to know the difference between when the ® symbol may be used as opposed to the ™ symbol. Inappropriate use of the ® symbol may lead to costly and potentially detrimental consequences to a small business.
Using the correct symbols to protect your brand is imperative for any business in today’s competitive world.
To determine which symbol is appropriate for your small business’ brand, it is best to consult an experienced trademark attorney to help determine the usability of the mark, the cost of registering, and the risk of failing to do so.
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