Trademark vs. Registered: Everything You Need to KnowTrademark Law ResourcesTypes of TrademarksHow To Register A Trademark
Trademark symbol is used for a logo, name, phrase, word, or design that represents the business and registered symbol is a registered trademark with the USPTO8 min read
2. Why is Trademark vs. Registered Important?
3. Reasons to Consider Using Trademark vs. Registered
4. What Could Happen When You Don't Use Trademark vs. Registered?
5. Common Mistakes
6. Frequently Asked Questions
7. Steps to File
Updated July 21, 2020:
What is Trademark vs. Registered?
The trademark symbol (TM) is a mark that companies often use on a logo, name, phrase, word, or design that represents the business. The registered symbol (R) represents a mark that is a registered trademark with the United States Patent and Trademark Office (USPTO).
Some people think you can use the two interchangeably, but this is not the case. The (TM) symbol actually has no legal meaning. You can use the symbol on any mark that your company uses without registering it.
The most common use of the TM symbol is on a new phrase, logo, word, or design that a company plans to register through the USPTO. The symbol can indicate your intent to move forward with obtaining a legal trademark. It also helps stake your claim in the design, alerting competitors that you plan to use it for your business.
But as mentioned, there is no legal protection when using TM. If you use a mark that infringes on someone else's trademark, you still put yourself at risk for legal trouble. When a company or person holds a trademark on a specific design, the mark has restricted use. Only the owner can use, produce, copy, or profit from it. In the event that someone else tries to copy it, that owner can take legal action in a federal court.
So before you add TM to the end of your mark, do some research. You'll need to make sure that no similar mark already exists in the Trademark Electronic Search System. If you find something similar, the next step is making changes to your mark so that it doesn't infringe.
Once you've determined that your mark is truly unique, you can start using the TM symbol at the end. The three main placement techniques for notifying competitors of your intent to use the mark are:
- Placing a symbol (TM, ®, * [asterisk], or dagger/double dagger) at the first use of the trademark but not on subsequent uses, then adding a footnote that overviews the trademark
- Placing the TM or ® symbol next to the trademark every time you use it
- Using a different font or formatting, such as bold, italic, or uppercase, for the trademarked words to differentiate them from other text.
An example of a footnote for the techniques listed might be something like: "The Apple logo is a registered trademark of Apple, Inc." You may also choose to include a reference to the legal trademark, such as "The Apple logo is a trademark registered in the U.S. Patent & Trademark Office." It's also acceptable to abbreviate the second portion as "Reg. U.S. Pat. & Tm. Off."
It's widely accepted to place it at the top left corner of the mark in the superscript text. If it doesn't look good there, you can drop it to the bottom right corner in subscript text. But putting it elsewhere is rare.
When you add TM to the mark, it makes sense to move forward with the trademark application. Make sure you include all required documentation.
If you're submitting a mark that only contains words, your trademark application must include a mockup of the word or words as you plan to use it/them. When you're trademarking a logo or symbol, include an image of the mark exactly how it will look when you use it on your product, collateral, or other materials.
It's also important to note that you'll only receive trademark protection on the exact design. So you may want to file several applications for a logo or symbol. If you plan to use it in more than one color, submit an application for each version, including one in black and white. This protects your mark in all forms.
Once you receive approval on your trademark application, you can legally start using the registered symbol. Using the symbol shows all competitors, customers, and others in the industry that you legally own the rights to this mark.
When using either mark in print, the general rule is to use it in the first instance of the mark. After that, you can stop using it without losing legal protection.
Why is Trademark vs. Registered Important?
There are four main reasons that trademark laws exist:
- Trademarks protect consumers from buying poor quality products from another manufacturer
- Trademarks advertise services and goods
- Trademarks guard the commercial interests of a company
- Trademarks identify the origin of a specific product or service
Using the TM symbol isn't as important or regulated as using the registered symbol on your company's mark. Because TM doesn't have any legal meaning, you don't actually have to use it unless you want to. But it does serve a purpose in helping alert others in your industry that you are laying your claim on this design, phrase, or word for your business.
The purpose of registering a trademark is to avoid confusion among consumers. Prior to trademark laws, companies could copy each other's designs or create similar marks. This led to confusion because consumers didn't know exactly what company made a specific product.
Without clear logos, symbols, phrases, words, or other designs, it's hard to stay loyal to a brand. But when companies could use something nearly identical to their packaging, customers might not be able to tell the difference.
When you attach the trademark notice to your mark, in the form of the TM or registered symbol, it's important to use it regularly and consistently across packaging, products, tags, labels, promotional materials, signs, letterhead/stationery, advertising materials, and all other items relating to your brand.
You could face the same problem if you don't register your mark with the USPTO. A competitor can purposely use a similar mark to cause confusion and encourage customers to buy its product instead.
There are some basic laws that protect businesses, including common law trademark rights. These rights offer protection if you've been using the mark in regular business practices. But it's nearly impossible to prove who used a mark first, especially if neither company filed a trademark application. What's worse is that if the competitor files first, the USPTO will look at the filing date as the most important piece of information when deciding who gets the trademark.
Common law trademark rights also take second place to trademark laws. So if you're using a mark that is too similar to another mark that holds a trademark, you could face legal trouble. The owner of the trademark can sue you for damages that occurred while you used the mark. Damages refer to how much money the company or person lost due to confusion in the marketplace. Before using any type of mark, be sure you search extensively to avoid infringing on someone else's trademark.
It's also your decision if you want to use the registered mark, as this isn't required. The only legal requirement around its use is using it after your trademark application has been approved. Using it before the approval comes through is against the law.
Not using the registered symbol on your mark comes with some risk as well. Without an indication that the mark holds trademark protection, someone else might use it. That person could even try to file a trademark application on a similar mark. While it likely won't be approved, it still wastes time and money for everyone involved.
It's also much more difficult to provide trademark infringement if the defendant states that he or she didn't know the mark had trademark protection. Using the registered symbol serves as a way to inform all who see it that it is registered with the USPTO. It will also hold up well in court if the infringer tries to claim that he or she had no knowledge that you held the trademark on the mark.
Reasons to Consider Using Trademark vs. Registered
Using the TM symbol is a matter of personal preference. It doesn't mean anything from a legal standpoint, so it won't hold up against someone trying to copy your mark. But it does bring awareness to your competitors, so that may be worthwhile to you. Using TM also doesn't require much work nor does it have a cost associated with its use, so it makes sense to add it to the mark.
The legal restriction is around using the registered symbol before your trademark receives approval from the USPTO. A trademark application could take between 6 and 16 months to process, so during the time in which your application is pending, you may only use the TM symbol. Upon approval, you can immediately start using the registered symbol.
You don't have to register your trademark, although this comes with some risk. Other companies could create something similar, then file an application for a trademark. If the USPTO isn't aware of your mark, there would be no reason to reject the application from your competitor. If the application goes through, you could end up infringing on the trademark rights of your competitor. You could also lose out on the option to use the mark at all in the future.
Five years after you register a trademark, the mark becomes incontestable, which means that you hold clear evidence of your right to use that mark. Incontestable trademarks hold more protection against infringement and limit the defenses that someone infringing on the trademark can raise.
What Could Happen When You Don't Use Trademark vs. Registered?
If you don't use the TM symbol on your logo, symbol, design, phrase, or word, your competitors may not know that you're claiming this for your business. Some companies use multiple logos to test the water, so it's hard to know for sure which one they plan to use as the main option. But with a TM at the end of the mark, there is no question that this is the one that will represent the company.
If you don't use the registered mark, you may lose out on the right to take legal action against someone who infringes on your mark. Without that clear indication that you hold trademark protection, a company owner could argue that he or she never knew.
One common mistake is believing that the TM and R symbols are interchangeable. Anyone can use the TM symbol without legal repercussions. But the R symbol is only for marks that have trademark protection from the USPTO.
It may also be a mistake to not use either the TM or R symbol on your mark. Without the TM symbol, your competitors won't know for sure that you're planning to register the mark. Using the R symbol also offers legal protection if someone tries to copy your design.
Frequently Asked Questions
- What does the TM symbol mean?
TM stands for trademark, although its use does not mean the associated mark holds legal protection. Anyone can use the TM on a symbol, phrase, word, or design. It indicates to competitors that the company using it stakes its claim on this particular design. Many companies also use it on their marks when the trademark application is in process with the USPTO. In this case, it means that the trademark is pending.
- What does the ® symbol mean?
When a mark includes the (R) symbol, this means that it has an approved trademark through the USPTO. You cannot legally use the registered symbol until you receive approval on your application.
- Do I have to register my mark?
Registering a trademark is not a requirement under any law. But failing to do so puts your company at risk. Another entity could register a similar mark, causing you to lose the opportunity to register yours in the future. Additionally, if the other company receives approval on the application, continuing to use your similar mark puts you in legal trouble. The competitor can sue you for trademark infringement.
Steps to File
- Search the database to make sure a similar or identical mark doesn't already hold a trademark
- Complete and file the application with the USPTO
- Track the progress of your application through the Trademark Status & Document Retrieval website. Your application will be available on the site within 14 days of electronic filing.
Understanding the difference between the trademark symbol and the registered symbol will help protect your company and your intellectual property. Never use the (R) unless you have an approved trademark application through the USPTO. Once you receive approval, you can only use the registered symbol on the exact mark that was approved. Any changes to your mark require you to file a new application and start the process again.
If you need help with using trademark vs. registered, 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.