When Should I Use the ™ Symbol Instead of ®?

The Circle R can only be used by businesses that have formally registered their trademark with the U.S. Patent and Trademark Office.

If you’re a small business, you need to protect your name and brand from your competitors. Generally, you should do so by adding a small trademark symbol next to whatever you’re trying to claim. But which symbol should you pick?

When choosing between the ™ and ® symbols you should be extremely careful. Using the ® symbol incorrectly is a federal crime.

To keep it simple, the TM symbol can be used by anyone that claims sole ownership of a trademark. The Circle R, however, is reserved for federally registered trademarks. To use the Circle R, you must formally register your trademark with the U.S. Patent and Trademark Office (USPTO).

The TM Symbol

You can use the TM symbol as a way of claiming ownership over your business’s trademark. Generally, in order to make this claim all you have to do is conduct regular commerce using an original trademark.

In legal terms, this gives your trademark protection under both common law and priority use. In practical terms, regular use of an original mark implies ownership. If you use a trademark in your everyday business, you can claim it with the TM symbol. Remember though that anyone can reasonably challenge this claim. If your trademark infringes on someone else’s earlier mark, using the TM symbol is pointless.

As an added bonus, since the TM symbol is only a claim of ownership you aren’t required to file any paperwork with the state or federal government to use it.

At its most basic level, the TM symbol is just a public claim of ownership over a specific mark. It has no real legal power except as a means of proving ownership in common law claims and priority use disputes.

Using the TM Symbol

Typically, the TM symbol is used for trademarks that are not yet fully registered with the USPTO. This means that any trademark going through the federal registration process should also use the TM symbol. You should use the TM symbol after locally registering your trademark with your state government.

Remember that you should never use the Circle R symbol before fully registering the trademark with the USPTO. Improperly using the Circle R can result in serious legal problems. If there is any doubt in your mind about which symbol to use, pick the TM symbol. You can always change it back after you’ve spoken with an attorney about the problem.

TM Protections

You should use the TM symbol if you have any intention of registering your trademark. Even if you don’t intend to register your trademark with the USPTO, you should probably still use the TM symbol. By using the TM symbol with your trademark, you’re establishing a claim over that specific mark. This can affect legal battles in the future.

Using the TM symbol is important because it helps establish a record of your claim to the trademark. When registering your trademark with the USPTO for example, you must provide a sample of your trademark “in use.” For example, showing the USPTO officer a product from six years ago that has both the trademark and TM symbol on it would greatly strengthen your application.

If you don’t have an example of your trademark in use, your entire application will be significantly weaker. Further, prominently displaying the TM symbol with your trademark can help when pursuing damages in cases of infringement.

Remember, however, that the actual legal protections gained by only using the TM symbol are quite limited.

If someone were to start using your logo or brand name, a TM symbol won’t let you sue them for damages. You’d instead have to file for injunctive relief (a notice for the defendant to stop using the trademark). Furthermore, the TM symbol will only protect your trademark in whatever local geographic area your product is sold in.

The Circle R

The Circle R, on the other hand, is used with trademarks that have gone through the formal process of registering with the USPTO. Accordingly, falsely using the Circle R is against federal law. On the other hand, using it properly can give your trademark broad and powerful protections.

It’s very important to continue using the TM symbol until your trademark is officially on the federal register. Using the Circle R before then could result in a lengthy legal battle with the federal government. This can cost you treble damages (three times whatever your profits were from using the trademark) in addition to attorney’s fees.

Registering your Trademark

Registering your trademark provides the greatest amount of legal protection, as you gain the benefit of using federal law to protect your trademark. In general, you should federally register your trademark as soon as possible. Some benefits to federally registering your trademark include:

  • Use of the trademark nationwide
  • Formal, government-backed ownership of your trademark
  • The ability to bring any suit regarding your trademark in federal court
  • The ability to recover damages including lost profits

There are a few steps you must take before attempting to federally register your trademark. The most basic however is using your trademark in interstate commerce. In other words, your trademark must extend beyond some local use.

For more information on registering your trademark, we’ve detailed the full process in other posts. We’ve also created a thorough walk-through for picking a strong trademark.

In any case, while registering a federal trademark isn’t overly complicated, the process is fraught with pitfalls that can lose you a lot of time, money, and peace of mind. You should always consider hiring an attorney to help you with the process.

Conclusion

You should always use a symbol to protect your trademarks. However, choosing between the TM and ® symbols can depend on what other steps you’ve taken to protect your trademark. In most all cases, it is advisable to go through the process of federally registering your trademark. This will ensure that your trademark has the greatest amount of legal protection.

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