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Defend Your Intellectual Property: ™, ℠, or ®?

by | May 4, 2023 | Intellectual Property | 0 comments

Your organization is on course to establish a powerful brand identity with the introduction of an exciting brand logo. Protecting this intellectual property asset (i.e., mark) is essential to safeguard and distinguish your position in the industry. It’s therefore important to understand the difference between ™ vs. ® (i.e., the TM vs. R symbol) and that you use them correctly.

Proper trademark use safeguards your organization’s name and branding. However, misusing a ™, R, or SM symbol leaves you vulnerable to trademark infringement. You could even lose your right to mark protection altogether, making it difficult to recover copyright statutory damages.

This article explores unregistered and registered marks and the difference between the TM vs. R symbol. We’ll also share 5 essential guidelines that will help you curb this risk and defend your intellectual property — whether you’re a for-profit company or are exploring nonprofit trademarks.

What Is an Unregistered Mark?

Unregistered trademarks identify goods/products that are not registered with the U.S. Patent and Trademark Office (PTO). However, they still protect your brand when you use the TM symbol (™) to tag a word, phrase, symbol, or design that distinguishes your products.

(The Nike check — a $ 34.8 billion mark — is an example of a registered trademark that represents its footwear products.) 

Unregistered service marks identify services that have not yet been registered with the PTO. The SM symbol () identifies an unregistered service mark.

(The name American Express is an example of a registered service mark that represents its credit card services.) 

White cardboard shoe box with a black Nike check. It sits on top of a brown shoebox and is below a red shoebox.

When to Use the TM Symbol / SM Symbol

You should use the trademark SM symbol or TM symbol when:

  1. Your intellectual property that represents a product or service is not registered with the PTO 
  2. Your application for a registered trademark or service mark is pending

When you use the TM or SM symbol, you’re indicating ownership of your intellectual property asset (e.g., a word, phrase, symbol, or design). State law protects these marks yet only within the geographic areas where you operate.

Officially registering your intellectual property further protects your brand on the national level. To take advantage of this brand and trademark protection, it’s essential to understand how to use the TM vs R symbol.

TM Vs. R Symbol Basics

Once the PTO officially registers your trademark or service mark, you’ll replace the TM or SM symbol that marked your intellectual property with the encircled R symbol (®) to indicate it’s federally registered. 

If you fail to use the appropriate mark, it will be challenging to recover profits and other monetary damages from an infringer. To avoid this costly headache, explore our five tips below that will help you master the tm vs. r symbol essentials.

And for more information on protecting your intellectual property, be sure to consult with a trusted trademark attorney.

1. Put Potential Infringers on Notice. 

Generally, you should use trademark symbols on all materials that will be seen by the public, including websites, brochures, newsletters, advertisements, and reports. While there is no legally prescribed protocol for placement of the ™, SM, or ® symbols, companies typically place them on the upper right-hand side of the brand name or logo (e.g., Kleenex®). 

The trademark symbol does not need to accompany your branded mark on every instance it appears in a document. However, it should be clearly visible so that a reader (or potential infringer) is placed on notice of your organization’s claim to ownership of the mark.

As a rule of thumb, the symbol should appear with each prominent use of the mark within a document (e.g., in titles, headings, captions, and credits). It should also accompany your mark the first time it appears in the main body of text. 

Hand underscoring a registered trademark to identify the when to use TM vs. R symbol.

2. Make Your Mark Prominent.

Your TM symbol, SM symbol, or R symbol should be clearly visible on all products, publications, websites, and other items on which your mark appears. It should also stand out from the surrounding text.

For example, your mark should not merely appear in small print at the bottom of a document, or combined with your organization’s address. Instead, you should place it in a prominent position on the front of the document.

The typographic treatment of your mark should also distinguish it from the surrounding text. You can use bold treatment, all caps, a distinctive font, or a different color. At a minimum, you should capitalize your mark. Using lowercase suggests your mark is a generic term and not a trademark. 

3. Mark Your Product or Service.

When you use a TM symbol or another trademark, it should clearly identify your product or service. If it identifies a product (e.g., printed publications, records, or clothing), the mark should prominently appear on the front of the item and/or its packaging.

Marks that protect a service (e.g.,  consulting, banking, or charitable services) should appear on brochures, advertisements, and your website in conjunction with a description of the services your mark identifies. 

4. Be Consistent.

Inconsistent use of your trademark will dilute its strength, making it difficult to identify as your distinct intellectual property. Below are best practices for maintaining a strong and consistent trademark: 

  • Do not alter your trademark or use different formats/versions
  • If your mark is a word, do not combine it with other words or abbreviate it
  • Do not alter the spelling or other features of your mark
  • If your mark is registered as a singular noun, do not treat it as plural
  • If your mark is a design, compose it with the same shapes, features, colors, and placement of elements
  • Do not combine your mark with other elements or adjust the elements of your design

If you decide to materially alter your mark, you should register a new and separate trademark. Otherwise, you could lose your rights to the original mark especially if you did not federally register it. If you’re not sure what constitutes a material alteration, it’s wise to consult with an experienced trademark attorney prior to modifying your mark.

5. Make Your Mark Proper.

When you use your trademark in a sentence as a noun, trest it as a proper noun not a common noun. For example:

  • Common noun: “We sell kleenex at our store.”
  • Proper noun: “We sell Kleenex® tissues at our store.”

If you treat your mark as a common noun, an infringer can claim its use is generic and does not serve a trademark function, which could deprive you of trademark rights. 

When it comes to trademark protection, there are many nuances you must consider. If you have any questions or are still not sure when to use a TM vs. R symbol, consult with a trademark attorney for peace of mind that your intellectual property is protected.

This memo is provided for general information purposes only and is not a substitute for legal advice. The transmission of this memo does not create an attorney/client relationship. No recipients of this memo should act or refrain from acting on the basis of this memo without seeking professional legal counsel. Gammon & Grange, P.C. expressly disclaims all liability relating to actions taken or not taken based on the content of this memo.