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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

Trademark Service Mark Copyright

A trademark is any word, phrase, symbol, design, sound, scent, colour, or combination that identifies the commercial source of products or services. Trademarks allow consumers to distinguish between brands in the marketplace and link positive associations from past purchases or exposure to particular products.

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

Using the TM Symbol

Trademark Symbols

The TM trademark symbol indicates an unregistered or common law trademark. 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.

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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 – it depends on factors like length/type of use and market reach. However, placing TM next to a mark still communicates necessary ownership rights and deters infringement within the common law territory.

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 TM. 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.

Which Symbol to Use and When?

Video Thumbnail: Copyright Vs Trademark 101

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 – For a newly adopted mark to communicate rights during registration pends

® – Once the USPTO registration certificate is issued

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

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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.

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.

Proving Trademark Rights and Infringement

Monitor Brand Name Trademark 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.

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

With global business, companies must understand relevant rules in the countries where they operate and translate trademarks appropriately. Local lawyers can advise suitable trademark designations.

Generally, the goals still apply – to inform consumers that legal rights exist, 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 rights regularly to preserve continued usage of their preferred symbol – either TM or ®.

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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 TM instead.

For common law marks, ongoing commercial use is effectively the 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

Keeping trademark rights current 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 around the proper use of TM and ®, translating them appropriately across global markets, documenting 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:

Do I need to display trademark symbols at all times?

The use of TM and ® is not compulsively mandated by law. However, consistent application, as outlined in your usage guidelines, is considered best practice to maximise rights and detect infringement.

Can I claim trademark rights without applying TM or securing federal registration?

Yes, common law rights arise automatically from continuous commercial usage – even without filing paperwork or displaying symbols. However, adding TM enhances the ability to tackle infringement. Federal registration provides superior legal advantages.

What happens if I falsely use ® without an active trademark registration?

Applying ® for an unregistered mark constitutes fraud. Rights revert to common law, with a TM symbol more appropriate. Additional penalties for deliberate misrepresentation may also apply in some instances.

Can I use TM and ® together for the same trademark?

Yes, brands commonly adopt TM/® hybrid approaches – especially if registration is still pending in some jurisdictions once all goods/services secure registered status, consistent use of ® is recommended.

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Stuart Crawford

Stuart Crawford is an award-winning creative director and brand strategist with over 15 years of experience building memorable and influential brands. As Creative Director at Inkbot Design, a leading branding agency, Stuart oversees all creative projects and ensures each client receives a customised brand strategy and visual identity.

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