Key Takeaways

  • A "trademark pending" designation indicates that your application is under review by the USPTO.
  • Using TM or SM symbols during the pending period helps deter infringement and signals ownership intent.
  • Trademark rights begin once the application is filed, but full protection is granted only after registration.
  • You may still enforce limited rights during the pending period, especially against later filers.
  • The USPTO examination process involves several stages and can take over a year.
  • Monitoring and enforcing your pending trademark helps protect your brand during the application process.
  • Common pitfalls include not conducting a clearance search and assuming TM use provides full legal protection.

What is Trademark Pending?

Trademark pending indicates that an application for trademark protection is in review with the United States Patent and Trademark Office (USPTO). You can use symbols (TM, SM) next to your symbol, mark, logo, word, phrase, or design that indicate the trademark pending status. Using these symbols can also send the message to potential competitors that you've applied for trademark protection.

What Legal Rights Do You Have During a Trademark Pending Period?

While a trademark is pending, the applicant does not yet have the full legal protections that come with federal registration. However, some important rights do apply:

  • Common Law Rights: From the moment you begin using a mark in commerce, you may gain common law rights, even if the federal registration is pending.
  • Priority of Filing Date: If someone else tries to register a similar mark after you file, your earlier filing date gives you priority in most cases.
  • Basis for Enforcement: While not as strong as a registered trademark, a pending application can still serve as evidence of your intent to use and protect the mark, which may support claims in cease-and-desist letters or disputes.

These limited rights emphasize the importance of filing early and documenting your mark’s use.

Trademark Symbols Explained

The trademark symbols are TM and SM. TM stands for trademark, which represents the protection on goods or a company that manufactures goods. SM stands for service mark, typically used for a company that provides services.

Uses for the Symbols

Individuals and companies can use these symbols freely without any legal documentation or approval. They don't actually hold any legal significance.

  • The benefit of using either mark is to make the public aware that you are claiming your branding rights. Most companies choose to use either the TM or SM symbol as a placeholder while the application for an official federally registered trademark is pending.
  • The symbols might also discourage other companies or people from copying your logo, design, phrase, word, or symbol. Adding them helps to warn potential competitors that you've claimed your design.

No legal requirements exist around using any of the symbols. If you don't use the trademark or service mark symbols, the choice is yours. Adding the symbols to your mark may help discourage competition or infringement, but their addition is not necessary.

The Registered Trademark Symbol

The registered trademark symbol (®) has legal restrictions, and federal law regulates its use.

  • You can only use this mark if you've received a trademark registration certificate from the USPTO , not when a trademark application is pending. When you complete a trademark application, you'll include documentation and images of the mark.
  • You can only use the registered mark with the logo, symbol, phrase, word, or design that received the trademark protection . If you change your design, you'll need to apply for a new trademark before using the registered symbol again.

You also don't have to use the registered mark either, although this omission can cause bigger problems.

  • If another company infringes on your trademark, you'll have to prove that the company knew you had trademark protection.
  • You'll also give up your right to claim lost profits and damages unless you prove the trademark infringer knew that you had a registered mark before infringement.

When the registered mark is used properly, the law states that this proper counts as constructive knowledge of a trademark. No one can claim to be ignorant or unaware.

How to Use the Symbols

When adding any of the symbols to your logo, phrase, word, or design, print the symbols in superscript text at the top right corner. If that area doesn't look good, you can drop the symbols to the bottom right corner. No laws exist that dictate where to place the symbols, but these locations are widely accepted.

If you're producing written documents, you can use the symbol once in the first instance of the mark. After you've done so, you can stop including the symbol on successive references in the text.

Why Is Trademark Pending Important?

The purpose of using trademark or service marks to indicate a pending trademark is to claim your design. Although they aren't required, both symbols help bring awareness to others in your industry about your ownership of this design.

How Long Does a Trademark Stay Pending?

The length of time a trademark remains in pending status can vary, but applicants can generally expect:

  • Initial Review: It typically takes 7–11 months for the USPTO to assign an examining attorney.
  • Office Actions and Responses: If there are objections or issues, you may receive an Office Action, requiring additional time for response and review.
  • Publication for Opposition: If the application passes examination, it enters a 30-day opposition period.
  • Final Registration: Assuming no oppositions and all requirements are met, registration can occur within 12 to 18 months.

Delays can occur if your application has issues or if other parties oppose it during the publication period.

Reasons to Consider Not Using Trademark Pending

If you choose not to use the trademark or service marks, there are no legal requirements to do so. But you run the risk of having another company or person use a similar or identical logo or symbol. Using the marks won't actually stop that use from happening, but these marks can deter the competitor. Many people also use the symbols to indicate a pending status with the USPTO.

The only way to secure your trademark legally is to file an application. The filing date will mark when you submitted the request. You'll also include documentation of when you started using the design in any capacity. If someone else tries to file for a similar design, the USPTO typically falls back on these dates. You'll have a nearly impossible time trying to prove that you used a mark first without showing an application.

Common Law Trademark

Common law trademark rights protect businesses or people who don't use the trademark or service mark symbols. You can register the marks in the state where you run your business. But even if you don't register the logo, phrase, or symbol, you may still have legal protection. A company that commonly uses the mark in business falls under the common law trademark rights.

The exception to common law trademark rights is trademark infringement. If you're using a similar or identical design to one that holds a trademark, the owner can take legal action against you.

Common Law Trademark Rights

Common law trademark rights also don't offer the same benefits of a federally registered trademark. These rights include the option to sue in a federal court, publish the mark, and apply for a presumption of incontestability. Presumption of incontestability is available to trademark holders after five years of filing, and it helps lower the risk that someone can sue you in court for trademark infringement or trademark dilution.

Risks and Misconceptions During the Trademark Pending Phase

Many applicants mistakenly assume that filing an application gives them full protection immediately. Key misconceptions and risks include:

  • False Sense of Security: Using TM/SM doesn't prevent infringement or guarantee approval.
  • Failure to Monitor: Competitors may still attempt to register or use similar marks. You must actively monitor and enforce your mark.
  • Assuming Approval is Automatic: Rejections are common due to similarity to existing marks, lack of distinctiveness, or incomplete documentation.

Being proactive with monitoring and enforcement—even while your trademark is pending—is crucial.

Common Mistakes

Many business owners and designers think they can't legally use the trademark or service marks until the design receives approval from the USPTO. But this provision actually applies only to the registered trademark symbol. Using your logo, phrase, design, word, or image will actually qualify you for common law trademark rights. When you use the trademark or service mark symbols, they help generate awareness of your claim to this specific mark.

As long as you're certain that your mark doesn't violate any existing trademarks, you should start using it as soon as possible in your company. Keep documentation of your trademark search so you have proof if your application gets denied. You'll need this proof if any competitors try to apply for a trademark on your design.

The USPTO focuses on filing dates and dates of first use, so make sure to get your application submitted as soon as possible.

Best Practices to Protect Your Brand While Trademark Is Pending

While your trademark is pending, you can take the following steps to safeguard your brand:

  1. Use the Mark in Commerce: Actively use your trademark with the TM or SM designation to build goodwill and prove first use.
  2. Monitor the USPTO Gazette: Check weekly publications to spot potentially conflicting applications.
  3. Send Cease-and-Desist Letters: If someone infringes on your pending mark, legal action—though limited—is possible based on your filing.
  4. Maintain Documentation: Keep detailed records of your mark’s use, advertising, and public presence to support your claim if challenged.
  5. Work With a Trademark Attorney: An attorney can help navigate office actions, oppositions, and enforcement strategies during the pending phase.

You can find experienced trademark attorneys on UpCounsel to help you take full advantage of your rights during the trademark pending period.

Steps to File

  • Any person, corporation, or business partnership can register for a trademark. In order to file for a trademark, you'll need to complete the USPTO's application. The exception to this rule is if you're filing for a state trademark, which requires a different application that varies by state.
  • Once you complete the application, your mark is now trademark pending.

A trademark pending status is an interim solution for protecting your intellectual property. You can use the trademark or service mark symbols with your design, but you need to make sure you file the trademark application as soon as possible. Approval of the application allows you to start using the registered mark and enjoy the legal rights and national protection of a federally registered trademark.

What Happens After You File a Trademark Application?

Once your application is submitted to the USPTO, the process unfolds in several stages:

  1. Initial Review: Your application is given a serial number and queued for examination.
  2. Examination by USPTO Attorney: They will evaluate your application for compliance and conduct a search for conflicts.
  3. Office Actions (if any): If issues are found, an Office Action is issued. You must respond within 3–6 months.
  4. Publication for Opposition: If approved, your mark is published in the Official Gazette. Third parties have 30 days to file an opposition.
  5. Notice of Allowance (for Intent-to-Use): If you applied based on intent to use, you must submit proof of use within a specific timeframe.
  6. Registration: If no oppositions arise (or you successfully overcome them), your mark will proceed to registration and you'll receive a certificate.

This detailed timeline underscores why trademark pending is a meaningful—but interim—status in the registration process.

Frequently Asked Questions

  1. Can I enforce my trademark while it's pending?
    You can take limited enforcement actions based on common law rights and your filing date, but full legal remedies are only available after registration.
  2. How long does the trademark pending status last?
    Typically 12–18 months, depending on the complexity of the application and whether there are office actions or oppositions.
  3. What does it mean if someone else files for a similar trademark after mine?
    Your earlier filing date usually gives you priority, but the USPTO will assess potential conflicts during examination.
  4. Should I use TM or SM while my trademark is pending?
    Yes, using TM (for goods) or SM (for services) signals your claim and may help deter infringers.
  5. Can I use the ® symbol while my application is pending?
    No, the ® symbol is only for federally registered trademarks. Using it prematurely may be considered fraudulent.

If you have questions about your trademark pending status, you can post your question or concern on UpCounsel's marketplace . Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.