The Trademark Symbol: A Key Sign of Legal Protection

The Trademark Symbol: A Key Sign of Legal Protection

A trademark is a crucial brand identifier, representing years of hard work and accumulated goodwill.

The trademark symbol, most commonly “TM️” and “®”, provides a visual cue that instantly relays the trademark status of a brand name, logo, or product packaging.

But trademark symbols encompass more than meets the eye – they signal that a mark is protected by legal rights that can be infringed or diluted by unauthorised use.

Understanding the proper contexts and rules for applying trademark symbols is critical for brand owners seeking to establish and protect their intellectual property and other businesses looking to avoid clashes.

Defining Trademarks

A trademark is any word, phrase, symbol, design, sound, scent, colour, or combination that identifies the commercial source of products or services.

Trademarks enable consumers to distinguish between brands in the marketplace and associate them with positive experiences from past purchases or exposure to specific products.

Understanding the Origins of the TM Symbol

The TM symbol is a familiar sight in today's commercial landscape, but its genesis can be traced back to the mid-20th century in the United States.

Emerging in the late 1940s, this symbol was developed as a means for businesses to signal their intention to claim trademark rights over a name, phrase, or design.

Initially a domestic practice, the use of the TM symbol has transcended borders, becoming a recognised marker worldwide. Despite its widespread adoption, the fundamental purpose of a trademark remains unchanged: to express the assertion of trademark rights.

This helps businesses inform the public that a brand element is under trademark consideration, even if it has not been officially registered.

The introduction of the TM symbol provided a more accessible pathway for brand owners to declare their intellectual property, a practice that has become essential in today's competitive markets.

Famous trademarks include brand names like Coca-Cola®, Nike’s Swoosh design logo, McDonald’s Golden Arches, and even signature sounds like Intel’s five-tone bong jingle.

When consumers see or hear these trademarks in connection with goods or services, they serve as trusted indicators of quality, experience, and source – all thanks to the powerful branding and trademark rights secured by these companies over decades of use and billions spent on marketing and promotion.

The Need for Trademark Symbols

Simply using a word, logo, or other brand asset does not automatically grant official trademark rights – there is a separate trademark registration process for securing legal protection.

However, brand owners can still put the public on notice that they are asserting ownership of a mark for trademark purposes by applying the proper trademark symbols:

TM – for common law unregistered trademarks

® – for trademarks registered at the federal level

These symbols communicate essential information to consumers and competitors about the trademark significance of brand identifiers. They signify that:

• The brand owner is asserting legal rights over this mark as an official trademark
• They consider unauthorised use that causes consumer confusion or dilution to infringe on their trademark rights
• Registration may already be secured or pending with the US Patent and Trademark Office or related international agencies

The visible presence of a trademark symbol can help deter infringement, enable licensing opportunities, enhance efforts to tackle counterfeits and secure legal remedies if needed. Let’s explore the rules around applying these trademark symbols in greater detail:

What About the Service Mark (SM) Symbol?

Right, so we’ve been discussing TM for products, but what happens if you’re not actually selling a physical product?

What if your business is all about what you do for people?

That’s where the often-overlooked SM symbol comes into play.

It stands for Service Mark, and it serves the same purpose as the TM symbol, but for services rather than goods.

Think about consultants, banking firms, marketing agencies, or even a local delivery company.

They aren't selling a product you can hold; they're providing a service.

For them, the SM symbol is the correct one to use before they get full federal registration.

The rules governing its use are identical to the TM symbol.

You don’t need to file any paperwork to start using it.

It’s simply your way of putting a flag in the ground and telling the world, “This brand name represents my service, and I'm claiming rights to it.”

It’s a public notice that you consider the name your intellectual property.

Using the TM Symbol

The TM trademark symbol indicates a trademark that is not registered or protected under common law. While the brand owner uses this mark to identify the commercial origin and quality of their goods/services, federal registration establishing nationwide priority has yet to be granted.

Brand owners assert common law trademark rights over a mark by using it in commerce to indicate the source. No paperwork is filed – rights arise from continuous, public use associated with specific products or services. These rights may even predate federal registration.

For example, Coca-Cola first used their famous Spencerian script logo design and bottle shape as early as 1886, but did not federally register them as trademarks until 1945!

The benefits of common law rights include:

• There is no need to go through a formal registration process – rights arise automatically from commercial use
• Legal protection and exclusive rights to the mark within the geographic area used

To gain common law rights, one must use the mark properly as follows:

• Apply TM immediately after the mark to identify trademark assertion
• Use the mark continuously in commerce to maintain rights
• Enforce rights against unauthorised use/infringement

The scope of legal protection differs from that granted through federal registration, as it depends on factors such as the length/type of use, as well as market reach.

However, placing TM next to a mark still communicates necessary ownership rights and deters infringement within the common law territory.

How to Determine the Placement of the TM Symbol on a Brand Name or Logo

Deciding where to position the TM symbol on your brand name or logo is essential to brand design. Here's how to determine the most effective placement:

• Prioritise Visibility: The symbol must be visible without overshadowing other brand elements. Often, it's placed in the upper right corner of the logo or brand name to achieve this balance.
• Maintain Design Harmony: You can choose alternative locations, such as the lower right corner, as long as they integrate seamlessly with the overall design. The key is ensuring the TM symbol does not disrupt the visual flow.
• Adaptability Across Platforms: Consider how the logo will appear across various media. The TM symbol should remain distinct and recognisable, whether on a business card, website, or billboard.
• Following Industry Norms: While creative freedom is encouraged, adhering to industry standards is also beneficial. Similar brands, such as Nike or Apple, commonly use the upper proper placement, so following this practice can help ensure familiarity with consumers.

By thoughtfully analysing these factors, you can select the TM symbol placement that enhances your brand's visibility and professionalism.

Applying the Registered Trademark Symbol (®)

For the strongest and broadest protection, brands often pursue registration to gain nationwide trademark rights. Once the US Patent and Trademark Office (USPTO) approves an application, the brand owner can use the federal registration symbol ® next to the registered mark.

Key benefits this confers include:

• Nationwide priority over later applications for identical/similar marks
• Legal presumption of ownership and exclusive rights to use the mark nationwide
• Ability to sue for infringement in federal court
• Listing in the USPTO database to help deter infringement
• May be registered internationally after securing US rights

Additional benefits apply if registration lasts five years and becomes “incontestable”. This offers conclusive evidence of validity and ownership that’s difficult to challenge. Famous long-standing trademarks like Coca-Cola®, Ford®, and Nike® all enjoy incontestable status.

To use the federal registration symbol:

• The mark must be actively registered with the USPTO
• Apply ® immediately after the mark
• Renew registration every ten years to maintain ® usage

If the registration expires, the brand owner reverts to common law rights, denoted by the TM symbol. However, rights arising from prior use are still enforceable within the geographic areas where the mark was previously used in commerce. Brand owners typically renew registration continually to retain exclusive nationwide rights.

State-Level Trademark Registration: A Middle Ground

You have common law rights with TM, and then there's the big one: federal registration, which provides nationwide protection and the ® symbol.

But the thing is, in the US, there's another step you can take in between those two.

It’s called state-level trademark registration.

Just as it sounds, this allows you to register your trademark within the borders of a specific state.

Now, it's not nearly as powerful as a federal registration.

Your legal protection stops dead at the state line.

But for some businesses, it’s a decent shout. Why?

To start, it’s generally less expensive, and the application process is much faster than going through the USPTO.

If you run a business that only operates in a single state, like a local chain of coffee shops or a regional cleaning service, state registration can be a perfectly sensible option.

It gets your mark listed on that state’s official database, which works as a formal public notice and can help deter local competitors from using a similar name.

Optimal Placement for the TM Symbol on a Logo or Name

Determining the best spot for the TM symbol on a logo or name is key to maintaining clarity and visibility. Typically, the ideal location for this symbol is the upper right-hand corner, immediately following the logo or name.

However, flexibility is essential. Placement should be adjusted based on the design to ensure the symbol remains prominent while not interfering with the visual harmony of the logo.

Considerations for Placement:

• Visibility: Ensure the symbol stands out and doesn't blend into the design or background.
• Design Integrity: The TM should complement the aesthetics, maintaining the brand's design language and appeal.
• Brand Examples: Major brands often set the TM symbol in a discreet and precise location, allowing the logo or name to remain the focal point.

Ultimately, the position should strike a balance between being noticeable and not overwhelming the central elements of your brand's visual identity.

Which Symbol to Use and When?

Choosing whether to apply TM or ® depends on the current status of the brand asset:

TM should be used for:

• Common law trademarks pending registration
• New brand assets before securing federal registration
• Expired registrations reverting to common law

® is appropriate only for federally registered and active trademarks. If registration is pending or expired, continued use of ® constitutes fraud.

In practice, many brand owners adopt a hybrid TM/® approach:

TM – A newly adopted mark is pending to communicate rights during the registration process.

® – Once the USPTO registration certificate is issued

TM/® – If some products bear the mark with registration, while new goods/classifications await approval

This allows brands to communicate asserted rights upfront while honesty denoting if federal registration is still in process. Once all relevant products/services secure registration, consistent use of ® is appropriate.

Creating the TM Symbol Across Different Devices

How do I generate the TM symbol effortlessly? Whether you're using Windows, a Mac, or a mobile device, here's how you can do it.

Windows Users

To create the TM symbol on a Windows PC, follow these simple steps:

1. Hold down the Alt key.
2. Enter the number 0153 on the numeric keypad.
3. Release the Alt key, and voilà, the TM symbol should appear.

Mac Users

Mac enthusiasts can also insert the TM symbol with ease:

• Press the Option key and simultaneously tap 2. Instantly, the TM symbol will materialise in your text.

Mobile Devices

For those on mobile, accessing the TM symbol is straightforward:

• Navigate to the symbols section on your device's keyboard. The TM symbol can usually be found among other special characters and symbols.

With these quick steps, you can seamlessly include the TM symbol in your documents, no matter the device.

Why Proper Trademark Symbol Usage Matters

While some may see trademark symbols as trivial, correctly applying TM or ® is critically important:

• Avoid false claims that constitute fraud – e.g. using ® without an active registration.
• Deter infringement by signalling that legal rights exist and enforcement action can be taken.
• Support legal arguments in case enforcement against unauthorised use becomes necessary.
• Enable licensing opportunities based on strong, protected ownership of the mark.
• Avoid undermining rights by making a mark generic – e.g., failing to apply TM to communicate significance as a source identifier.

The Risk of Genericide: When a Trademark Becomes Too Common

Here’s a strange problem to have: your brand can become so successful that it actually self-destructs.

When your brand name becomes the default word for an entire category of product, you risk losing your trademark altogether.

This process has a name, and it’s called “genericide”.

It occurs when the public begins using your trademark as a generic noun or verb, effectively erasing its uniqueness as a source identifier.

History is littered with fallen brands that became victims of their own success.

‘Aspirin’ was once a trademark owned by Bayer.

‘Escalator’, ‘Thermos’, and even ‘Zipper’ were all protected brand names.

However, they became so closely associated with the products themselves that they lost their trademark status in the US and became generic terms that anyone could use.

It’s why some large organisations are so protective of how their names are used.

Google would prefer you say you “searched on Google,” not that you “googled” something.

It’s a constant battle to remind the public that their name is a specific brand, not a general action.

This is yet another reason why proper symbol usage is so important; it’s a constant reminder that the mark is a proprietary brand, not just a common word.

Proving Trademark Rights and Infringement

Beyond visibly designating a trademark with TM or ®, brand owners must be prepared to prove underlying usage and rights if challenged. Relevant evidence includes:

• Specimens showing real examples of the mark used in commerce on products, tags, invoices, advertising, etc.
• Records that indicate continuous use over many years and across various trade channels
• Sales and marketing figures to quantify customer exposure to the mark.
• Consumer surveys link the mark to perceptions about quality/source.
• Legal documentation, like trademark search reports and registration certificates

Infringement may be provable if another party uses an identical/similar mark in a way that causes consumer confusion. Likely grounds include:

• Trademark dilution: unauthorised use diminishes the distinctiveness of a famous mark
• Counterfeiting: replicas mislead consumers into believing they purchased genuine goods
• Cybersquatting: bad faith registration of domain names featuring protected marks
• Bait-and-switch tactics: falsely claiming affiliation with a brand to misdirect customers

However, infringement claims require assessment:

• Whether the plaintiff’s mark qualifies for protection based on inherent distinctiveness and proof of use as a source identifier, with appropriate TM or ® designation
• If the defendant’s use causes a likelihood of consumer confusion, mistake or deception around the source, sponsorship or affiliation
• Factors like similarity of the marks, relatedness of goods/services/sales channels, and the defendant’s intent

The standard for proving infringement may be more complex for common law marks lacking federal registration. However, trademark symbols still communicate ownership and expectations around authorised use.

Understanding Trademark Fair Use

Once you’ve got your trademark protected, does that mean no one else can ever use that word or logo without getting a letter from your solicitor?

Not exactly.

There’s a legal doctrine called “fair use” that sets out some important exceptions.

Fair use allows other parties to use a protected trademark without the owner's permission, provided that it is done under specific circumstances.

It’s not a free pass to do whatever you want.

There are two main types.

First is nominative fair use.

This is when someone needs to use your mark to actually refer to your product.

For example, a news outlet reporting on Coca-Cola needs to be able to use the name “Coca-Cola®”.

A local garage needs to be able to advertise that it repairs Ford® vehicles.

They aren't pretending to be you; they are just using your mark to identify your goods for purposes like commentary, news reporting, or comparison.

That’s generally allowed.

Second, there is descriptive fair use.

This applies when a trademark also happens to be a common descriptive word.

Imagine your brand is called ‘Sweet & Juicy’ apples.

Another farm can still describe their own apples as being “sweet and juicy,” as long as they are just using the words in their ordinary, descriptive sense and not trying to mimic your brand.

They can't copy your logo or packaging, but they can't be barred from using everyday words.

So, your trademark gives you powerful rights, but its main job is to prevent consumer confusion, not to stop all forms of conversation or description involving your brand name.

Navigating Foreign Jurisdictions

While TM and ® are commonly recognised in the US, other jurisdictions have their own rules and preferred symbols:

• Europe: ® is generally not used. TM is typical, along with international characters like € to denote EU registration
• Canada: Symbols like MC (for “Marque de commerce”) and MD (for “Marque de certification”) assert trademark rights
• China: Brand owners instead place the characters “商标” next to protected marks

In a global business context, companies must understand the relevant laws in the countries where they operate and translate trademarks accordingly. Local lawyers can provide guidance on selecting suitable trademark designations.

Generally, the goals remain the same: to inform consumers of their legal rights, deter infringement, and secure protections under applicable laws. However, achieving these aims looks different across trademark regimes worldwide.

Renewing Rights

Finally, trademark owners must renew their rights regularly to preserve the continued use of their preferred symbol – either TM or ®.

A declaration of continued use must be filed for registered marks between the 5th and 6th year after registration and every 10 years after that. If registrants fail to renew, protection reverts to common law rights, denoted by the TM symbol instead.

For common law marks, ongoing commercial use serves as the effective renewal mechanism. If TM is applied, but a mark falls out of use for an extended time, common law rights may lapse or become geographically restricted. Verifying continued real-world application alongside the chosen trademark symbol is critical.

Best practice tips include:

• Calendar all renewal deadlines for registered marks
• Budget funds every ten years to keep registrations active
• Document ongoing common law use with specimens demonstrating up-to-date usage
• Conduct regular trademark audits to identify approaching renewal dates or gaps in usage

Maintaining current trademark rights through renewals preserves the brand value and exclusivity built over decades of investment. It enables continued application of ® or TM symbols that signal the identity and integrity companies rely on to attract and reassure customers.

The Bottom Line

Under US law and accepted commercial practice, applying either TM or ® is critical for companies seeking to manage their brands. Beyond aesthetics, trademark symbols communicate the scope of legal rights asserted and demanded.

They distinguish brands as proprietary source identifiers in consumer minds. And they aim to deter infringement that erodes hard-won differentiation.

Mastering the rules surrounding the proper use of TM and ®, translating them accurately across global markets, documenting the underlying proof of trademark ownership, and staying vigilant through renewals will pay off significantly.

These best practices help safeguard a business’ most valuable long-term asset – the corporate identity and consumer perceptions of a protected brand.

No organisation can afford to undermine or lose hold of the trademark equity they have accrued over the years. Not when persistent and careful use of simple designations like TM and ® can help lawfully steer them for decades.

Frequently Asked Questions (FAQs)

Here are some common questions about trademark symbols and brand protection strategies: