As a consumer, you’re no doubt familiar with the ™ and/or ® symbols. Even if you don’t know what they mean exactly, you’ve probably seen them on enough brands and enough logos to know that they stand for something.
Although confusing, a trademark symbol is necessary. In the case of inventors, innovators, and entrepreneurs, implementing these symbols correctly may prove to be highly beneficial to you later on.
In this article, we’ll cover the different types of trademark symbols that can be used and the proper instances to use them.
What is a Trademark?
First things first; a definition.
A trademark is an intellectual property (IP) asset that protects words, phrases, symbols, designs, colors, sounds, or a combination thereof that is used to identify the source of commercial goods and/or services.
Why Do the Trademark Symbols Exist?
The trademark symbol serves as a visible notice to consumers that the mark preceding it is a trademark. People can then easily tell whether or not the trademark in question is registered or unregistered, depending on the trademark symbol used.
Aside from being easy to implement and immediately visible, the trademark symbol can also serve as a deterrent for other businesses attempting to use the same mark or a similar version. It can also be used to provide trademark advantages in potential infringement cases.
3 Types of Trademark Symbols
Everyone is no doubt familiar with the ™ symbol, as well as the ® symbol. The third trademark symbol is the lesser-known ℠, or service mark symbol.
™ and ℠ are used for unregistered marks. ™ stands for “trademarks,” which is basically used to represent goods. ℠ stands for “service marks,” which—as you may guess—is used to represent services.
The ® is the “federal registration symbol,” and is reserved for registered marks i.e., marks officially registered in the U.S. Patent and Trademark Office (USPTO).
When Should You Choose the ™ Symbol?
As mentioned earlier, trademark symbols are used for common law marks that represent goods or services that are either (1) not federally registered with the USPTO, or (2) are pending registration. The ™ symbol in particular is used to represent federally unregistered goods—not services.
Basically: use the ™ symbol to represent trademarked goods that are not registered.
The ™ Symbol vs The ℠ Symbol
Given that trademarks are marks that represent goods, does that mean you shouldn’t use the ™ symbol for federally unregistered services?
Technically, yes. The ℠ symbol—or service mark symbol—is used for unregistered common law trademarks that represent services. However, because this symbol is much less common and not as broad as the ™ symbol, it does not get the same level of immediate recognition.
What’s more, the ™ symbol—as well as the word “trademark” itself—is commonly and legally interpreted as broadly representing both goods and services. Which, all in all, means that you can still use the ™ symbol in lieu of the ℠ symbol to represent service marks, so long as those service marks are not federally registered.
Legal Significance of the Trademark Symbol
Legally speaking, there is no actual significance or requirement to use the ™ symbol (or even the ℠ symbol) since it technically denotes marks that are not federally registered with the USPTO. It is, however, highly recommended—especially for inventors, innovators, and entrepreneurs.
If you know how to invent something, then you know just how frustrating it is to not receive recognition for your product. Using the trademark symbol is your way of notifying the market (and your competitors) that you’re claiming the branding rights to a particular mark. This, in turn, dissuades others from trying to claim the rights to the same or similar product/service mark.
The presence of the ™ symbol greatly reduces the risk of unwitting trademark infringement involving your product or service. Consequently, this is the same sort of trademark infringement that disrupts free marketplace trade of goods and services.
Legal Significance of the ® Symbol
The federal registration symbol, which is the ®, has reasonably more legal significance and is, in fact, regulated by law. The ® can only be used for a mark that is federally registered with the USPTO, and it can only be applied to the products and services that are listed in the registration.
Interested parties are not legally required to use the symbol. However, there are several foreseeable consequences that come with forgetting to use it (or opting not to).
For instance, say someone commits infringement on your mark. In the event of an enforcement action, you forfeit your right to recover lost profits and money damage if you fail to prove that the defendant possessed actual knowledge regarding your mark’s registration.
That is to say, if you didn’t use the ® symbol for your mark, the party that infringed on it can legally claim that they didn’t know your symbol was federally registered. Lack of the ® could have the court ruling in their favor.
The law is on the side of the trademark owner, however, if he/she uses the registration symbol correctly. Using the ® correctly will mean that potential defendants have constructive knowledge of the mark’s existing registration. So even if they didn’t have literal knowledge of the trademark registration (i.e., they don’t know what ® means exactly), a patent attorney would argue that it is still reasonable to assume that they knew the mark was registered in some way.
Simply put, they can’t pull the “I didn’t know” card because of the presence of the ®.
If you already know how to patent an idea, then you’re no doubt familiar with the sheer amount of resources that go into protecting something from infringement. Taking preventive measures by using trademark symbols is a great way to give yourself some future insurance in the event of enforcement action.
Are you ready to register your trademark symbol? Book a free consultation today!
How to Use the Trademark Symbol
How should the actual ™ appear with regards to the mark it’s representing?
When placing a trademark symbol, it should appear in the upper right-hand corner of a mark, and it should be in superscript. For instance:
This is how ™ is typically used.
But if, for whatever reason, that placement is not practical or aesthetically pleasing, it can be dropped to the lower right-hand corner of the mark and changed to subscript.
It is highly advised that you avoid placing the trademark symbol anywhere else i.e., to the left of a mark, above the mark, below the mark, etc. This isn’t legally reinforced, but it’s always best to follow standard norms.
In the case of written documents such as promotional material, articles, and press releases, you do not need to use the trademark symbol in every iteration of the mark on the document in question. Simply placing it on the first instance of the mark or on the most prominent appearance of the mark is enough.
So in the case of written documents, the ™ only needs to appear once.
Because using the ™ too many times creates visual clutter. It may, ultimately, detract from the aesthetic appeal of the document. It also creates visual redundancy which, again, can diminish the document’s visual appeal.
Rule of thumb: as long as there’s at least one conspicuous use of the ™, ℠, or ® symbol, it will be considered.
Avoiding Trademark “Mutilation”
Be aware that incorrectly using the trademark symbols can also have dire consequences. This means that things like unchecked third-party use (including licensee use) can severely undermine the significance and validity of your trademark. In the most extreme cases, misuse or mutilation may even result in a loss of your rights.
If you have a vague idea about how much a trademark costs, then you know that this could potentially damage your financial reserves. That being said, here are some things you can do to preserve the significance of your trademarks.
Never Use Your Trademark as a Noun
Don’t let third parties use it, either. Always use your trademark as an adjective modifier, modifying a generic word. For instance; “this is an Example Laptop,” or “using the Example headphones,” (with “Example” being the trademark).
This is because there is a risk that using the trademark is a noun will cause confusion amongst consumers. They could, in most cases, believe the trademarked word indicates a product category rather than a single product or product emanating from a single source.
This, in turn, may cause others to see your product or service name as a generic type of product or tech.
When this happens, you may lose your trademark rights.
The exceptions to this rule are typically only for well-known brand owners. They can afford to use their trademarks as nouns because of their popularity. Think of how people can say things like, “buying an iPhone,” or “driving a Ford,” without risking confusion.
Never Use Your Trademark as a Verb
As with the previous rule, don’t let third parties do this, either. The reasoning behind this is pretty much the same as using trademarks as nouns. It detracts from the significance of your mark and may, in turn, jeopardize your rights.
Never Combine Your Trademark with Other Elements
This creates what is called a “hybrid mark,” and it causes more harm than good. Combining your trademark with other elements may turn it into something else entirely, nullifying the claim you have for the original mark. Trademarks may not have on-going costs like patent maintenance fees or periodic fees, but the cost of legal action with regards to the loss of rights, trademark infringement, and/or trademark mutilation will still be significant.
Still need more clarification? Book a free consultation today!
To recap here is what we covered in our trademark symbol article:
Table of Contents
In summary, trademark symbols—whether for registered or unregistered products and services—are essentially public notices. They tell whoever sees them that the mark preceding them is trademarked and claimed.
These public notices ultimately serve to deter interested parties from trying to claim the same or similar marks. In the case of the trademark owner, the presence of the trademark symbol also provides substantial legal benefits in the event of an infringement.
Are you ready to trademark your company name? Read our guide to find out how!
Do you still have questions? Book a free consultation today!