I’m often asked the question “What do the Trademark Symbols – “®” “TM” “SM” – mean, and when should I use them?”
Only One Rule: There is only one rule that you have to follow when it comes to the use of trademark symbols, and that is: You cannot use the “®” symbol unless and until the trademark is officially registered by the United States Patent and Trademark Office (USPTO).
Let me say that again – the only rule in trademark law when it comes to the use of trademark symbols is: You cannot use the “®” symbol unless the trademark is registered by the USPTO.
So, that begs the question, what are the Trademark Symbols and what do they mean?
TM Symbol: The “TM” Symbol – e.g. “ExampleTM” simply means that the user of the mark believes this mark to be more than a mere word or phrase. Use of the “TM” Symbol indicates that the user of the mark considers the word or phrase to be their “trademark.”
SM Symbol: The “SM” Symbol – e.g. “ExampleSM” is very similar to the “TM” Symbol. However, the “SM” Symbol means “Service Mark” and should be used with “Services” as opposed to “Goods.” Use of the “SM” Symbol indicates that the user of the mark considers the word or phrase to be their “trademark” that is used specifically with “services.”
Because the “SM” Symbol is intended to be used with “Services” then that begs the question: Is the “TM” Symbol supposed to be used with “Goods” only? The answer is – No. A “Service Mark” is still a “Trademark” because a “Trademark” indicates the provider of “goods or services.” So, you can use the “TM” Symbol in association with a “Trademark” that is used in association with “Services” as well as “Goods.” Confusing, I know.
Personally, I slightly disfavor use of the “SM” Symbol. I say this because it’s been my experience that most consumers do not know the meaning of the “®” Symbol and the “TM” Symbol. These same consumers seem to have even less of an understanding as to what the “SM” Symbol means. Or, said another way, consumers seem to be more familiar with the “®” Symbol and the “TM” Symbol and therefore I prefer their use over the use of the “SM” Symbol.
®Symbol: The “®” Symbol – e.g. “Example®” means that the trademark that it is used with has been applied for and registered by the United States Patent and Trademark Office (USPTO). Or, said another way, the “®” Symbol can only be used when the trademark has been registered by the USPTO. The “®” can be used with both “Goods” and “Services.”
When Should I Use The “Trademark Symbols – “®” “TM” “SM”: Again, the only rule that you have to follow is that you cannot use the “®” symbol unless your trademark is officially registered by the USPTO.
If your trademark is not registered with the USPTO: You can use the “TM” Symbol in association with trademarks that are used with goods and/or services. You can also use the “SM” Symbol in association with trademarks that are primarily used with services. Or, you can choose to use no symbol at all.
If your trademark is registered with the USPTO: You can use the “®” Symbol in association with trademarks that are used with goods and/or services. You can also continue to use the “TM” Symbol in association with trademarks that are used with goods and/or services. You can also continue to use the “SM” Symbol in association with trademarks that are primarily used with services, but again I slightly disfavor the use of the “SM” Symbol. Or, you can continue to choose to use no symbol at all.
Whether you choose to use a Trademark Symbol or not has practically no legal impact (so long as you don’t break the one rule – which is: you cannot use the “®” symbol unless your trademark is officially registered by the USPTO).
That makes the use of a Trademark Symbol largely a matter of preference.
My Preference: If your mark is registered it is worthwhile to include the “®” Symbol when the Trademark is used.
If your trademark is not registered (or should I say “not-yet-registered” because you should always consider registering your trademarks!), but you feel strongly about the mark and you would not like your competitors using a similar mark with similar goods or services, then it is worthwhile to include the “TM” Symbol when the Trademark is used.
Proper use of a Trademark Symbol – “®” “TM” “SM” – shows some trademark acumen and legitimacy. The proper use of a Trademark Symbol serves as a notice function to your consumers and competitors and can help encourage your competitors to not infringe your trademark.
When & Where: How often and where you use the Trademark Symbol is similarly a matter of preference. That is, once you’ve selected which Trademark Symbol you are going to use, there is no obligation to use the Trademark Symbol every time the trademark is used. In fact, I sometimes cringe when I see documents that unnecessarily over-use the “®” Symbol or “TM” Symbol. It can get overwhelming and distracting. While I certainly appreciate corporate policies when it comes to the use of Trademarks and Trademark Symbols, my suggestion is to use a Trademark Symbol whenever it makes sense and to never feel obligated to use a Trademark Symbol whenever it distracts or takes away from your purpose in the advertising material, packaging or product.
My preference: Whenever your trademark is used in a prominent or bold manner (think the upper left-hand corner of your website) use of a Trademark Symbol should be considered.
Proper Location of a Trademark Symbol: In most cases, trademark symbols are used in a superscript on the right-hand side of the trademark – e.g. Example®. While use in a superscript on the right-hand side of the trademark is most common, it is not obligated or required. Again, the rule of reason and preference applies here as well. I’ve seen many effective uses of a Trademark Symbol in subscript left-hand-side position as well as other positions.
In Summary:
- If your mark is registered, my preference is to use the “®” Symbol where it makes sense.
- If your mark is not registered, my preference is to use the “TM” Symbol where it makes sense (irrespective if you’re selling goods, services or both). My preference is to use a Trademark Symbol whenever your mark is used in a prominent or bold manner with a bias toward use as opposed to non-use.
- Also, never feel obligated to use a Trademark Symbol whenever it distracts from the purpose of the work.
- And, finally, the only rule that you have to follow is that you cannot use the “®” symbol unless your trademark is officially registered by the USPTO (but, since I repeated that one rule several times – I’m sure you’ll never do that!).
If you need further guidance on when or how to use these trademark symbols or need assistance in filing your trademark, please contact Chris Proskey.
