There are THREE commonly used trademark symbols in the United States:
- the letters “TM” in superscript — ™
- the letters “SM” in superscript — ℠
- the letter “R” in a circle — ®
What is the difference between the trademarks symbols?
The ™ and ℠ symbols signify unregistered marks: ™ for trademarks, or marks that represent goods, and ℠ for service marks, or marks that represent services. The federal registration symbol, or ®, is reserved for marks registered with the United States Patent and Trademark Office (USPTO).
You can establish “common law” rights in a mark based solely on use of the mark in commerce, without a registration. And even though you are not required to register your marks to obtain protectable rights, there are certain benefits and advantages to owning a federal registration.
There is no requirement to use the ™ or ℠ symbols and their use bear no legal significance, but from a business and marketing perspective, it makes sense to do so. When you use the ™ or ℠, you notify the public of your claim of branding rights to a particular mark and in turn, dissuade your competition from adopting the same or similar mark for the same or similar products or services.
The federal registration symbol, however, is regulated by federal law, and should only be used once your application with the USPTO has been cleared and you have been granted a federal registration. Furthermore, you may use ® with the mark only on or in connection with the goods and/or services you filed on your USPTO application. However, no specific requirements exist as to the precise placement of the ® symbol, e.g., whether used in a subscript or superscript manner.
While you are not legally required to use the ® symbol, failure to use it is not without consequence. In an enforcement action, you will forfeit your right to recover lost profits and damages unless you can prove the defendant had actual knowledge that your mark was registered prior to the infringing activity. So, it is best to use the correct designation any time you use your mark.