When to Use Trademark Symbols TM, SM and ® – US and Globally

What Do the Symbols ®, TM and SM Mean and When Do You Use Them?

United States Marking

1. Registration Symbol ®

The trademark registration symbol ® may be used once a mark is federally registered and carries with it various legal rights (see list below).  This notice may only be used with federally registered marks. 

2. Trademark Symbol TM

“TM” is used with trademarks that are not federally registered and for marks that designate products; an unregistered mark is treated as a “common law” mark, which is also a legally recognized trademark right within the geographic regions in which the mark is used.  

3. Service Mark Symbol SM 

“SM” is used with marks that are not federally registered and for marks that designate services; an unregistered mark is treated as a “common law” mark, which is also a legally recognized trademark right within the geographic regions in which the mark is used.

International Marking Considerations

Use of ®, TM and SM are country specific.  Use of ® in countries where the mark is not registered may be punishable by fine and even imprisonment.  Some countries may even impose penalties for using TM if the mark is not registered under the theory of false adverting if consumers would perceive such use and indication that the mark is federally registered when it is not. 

For more in-depth information about global trademark marking, see my post here. 

Conclusion – When to Use Trademark Symbols

The issue of when to use trademark symbols comes up quite frequently in my practice with client of all sizes, from start-ups to large international companies.

Key take-a-way: For trademarks that are not yet registered, brand owners should use either the TM or SM upon brand launch and “claim” those trademark rights and let everyone know about it.

Best Practices Trademark Guide

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Advantages of Federal Trademark Registration

1.  The ® symbol can be used, signifying the company’s registered interest in the mark

2.  Registration adds value to the company’s intangible asset portfolio

3. Registration acts as a notice to would-be third-party users of same or similar mark

4. Registration is prima facie evidence that the registered mark is valid, the registrant owns the mark and has exclusive rights to use the mark in commerce

5. After five years of continuous use in commerce, the mark becomes incontestable, which means that the registration cannot be attacked on descriptiveness or prior use

6. A registrant may sue in federal court when diversity does not exist

7. In a successful trademark infringement action, the registrant may obtain treble damages and reasonable attorneys’ fees

8. The registrant may use the power of the federal government (via the U.S. Customs Service) to prevent the importation of goods that contain infringing marks

9. One registration covers 50 states

10. Tactical advantages in domain name disputes

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