Patent & Trademark Attorney
The Difference between Patent, Trademark & Copyright Symbols
We’ve all seen the TM, SM, and ® symbols on products we encounter – but what do they mean? All 3 symbols are commonly used with trademarks. So what is a trademark? A trademark is a word, phrase, or symbol that is used in connection with a product or service that identifies the brand owner. For example, the trademark “Papa John’s” identifies a product (pizza). Knowing when and how to use each symbol can be confusing, but the following guidelines can help.
The TM symbol stands for “trademark.” It is important to note that the TM symbol indicates a trademark that has not yet been registered with the U.S. Trademark Office. If you have not yet registered your brand name with the Trademark Office, you should identify the product with the TM symbol. The TM symbol alerts potential infringers that your mark is being claimed as a trademark. However, the use of the TM symbol does not guarantee that the owner’s mark will be protected – you need to register the trademark with the Trademark Office to gain those benefits.
The SM symbol stands for “service mark.” A service mark is a type of trademark that identifies the services of one company from those of another. For example, the trademark “Walter’s Landscaping” would qualify as a service mark because it is associated with landscaping services, not an actual product. As with the TM symbol, the SM symbol identifies a service mark that has not yet been registered with the U.S. Trademark Office.
Your business can use the TM or SM symbol any time after the mark is used in commerce, regardless of whether you have filed a trademark application with the U.S. Trademark Office. The TM and SM symbols give notice to third parties that you are claiming the name as your trademark or service mark.
Do you have to use the TM or SM symbols? No! There is no requirement that trademark owners must use the TM or SM symbols with their trademarks – but it makes sense to use them! When you use the TM and SM symbols, you put third parties on notice of your ownership of that particular trademark. This will dissuade others from adopting the same or a similar trademark.
The ® symbol indicates a registered trademark. Only federally registered trademarks can use the ® symbol. In fact, if you prematurely use the ® symbol, the government has grounds to deny your trademark based on fraud. Registering your trademark grants you superior rights over others in the U.S. to use your trademark. For example, a registered trademark gives the owner a presumption of ownership in the courts.
Do you have to use the ® symbol? Technically no – but failure to use the symbol can result in a forfeiture of your rights to recover lost profits and other monetary damages in cases of infringement. If the ® symbol is not used, the trademark owner has the daunting task of proving that the infringer had actual knowledge that the trademark was registered. Under U.S. trademark law, if a trademark owner uses the ® symbol, any future infringers will be deemed to have constructive knowledge that the trademark has been registered with the U.S. Trademark Office. So even if the infringer did not have literal knowledge that the trademark was registered, they are assumed to be aware of the registered trademark.
Where do you put the TM, SM, or ® symbol? Most of the time, the symbol is placed in superscript in the upper right-hand corner of the trademark (e.g., Ann’s AccountingSM). If it’s not practical, the symbol can be positioned in the lower right-hand corner of the trademark (e.g., Gary’s Garage SM). Just keep in mind that the TM, SM, and ® symbols should never be placed above, below, or to the left of the mark.
When used throughout a written document, such as promotional materials or a press release, the owner may choose to use the symbol with the first use of the mark only. In other words, the TM, SM, and ® symbols do not have to be used with each and every instance of the mark in a document, especially if it creates visual clutter and is aesthetically displeasing.
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