What Do the Symbols ®, TM and SM Mean and When Do You Use Them?
United States Marking
- The trademark registration symbol ® may be used once a mark is federally registered and carries with it various legal rights (see list below). This notice may only be used with federally registered marks.
- “TM” is used with trademarks that are not federally registered and for marks that designate products; an unregistered mark is treated as a “common law” mark, which is also a legally recognized trademark right within the geographic regions in which the mark is used.
- “SM” is used with marks that are not federally registered and for marks that designate services; an unregistered mark is treated as a “common law” mark, which is also a legally recognized trademark right within the geographic regions in which the mark is used.
International Marking Considerations
- Use of ®, TM and SM are country specific. Use of ® in countries where the mark is not registered may be punishable by fine and even imprisonment. Some countries may even impose penalties for using TM if the mark is not registered under the theory of false adverting if consumers would perceive such use and indication that the mark is federally registered when it is not.
For more information about international trademark marking, see my blog post here.
Advantages of Federal Trademark Registration
1. The ® symbol can be used, signifying the company’s registered interest in the mark
2. Registration adds value to the company’s intangible asset portfolio
3. Registration acts as a notice to would-be third-party users of same or similar mark
4. Registration is prima facie evidence that the registered mark is valid, the registrant owns the mark and has exclusive rights to use the mark in commerce
5. After five years of continuous use in commerce, the mark becomes incontestable, which means that the registration cannot be attacked on descriptiveness or prior use
6. A registrant may sue in federal court when diversity does not exist
7. In a successful trademark infringement action, the registrant may obtain treble damages and reasonable attorneys’ fees
8. The registrant may use the power of the federal government (via the U.S. Customs Service) to prevent the importation of goods that contain infringing marks
9. One registration covers 50 states
10. Tactical advantages in domain name disputes