TM, SM, and ® Symbols: Which Trademark Symbol Can You Legally Use?

Understanding Trademark Symbols and Their Legal Significance

If you've ever noticed the small symbols—™, ℠, and ®—appearing next to brand names and logos, you've encountered the visual shorthand businesses use to assert trademark rights. While these symbols seem simple, they carry significant legal implications and using them incorrectly can result in serious consequences including loss of trademark rights, denial of legal remedies, and potential fraud claims. Understanding when and how to use each symbol is essential for proper brand protection and trademark compliance.

The Three Trademark Symbols Explained

The ™ Symbol (Trademark)

The ™ symbol indicates that a word, phrase, logo, or other designation functions as a trademark for goods—physical products that are manufactured, sold, or distributed in commerce. Examples include clothing, electronics, food items, furniture, vehicles, and any other tangible products consumers can purchase.

Importantly, the ™ symbol can be used without any formal registration. It serves as a notice to the public that the party using it claims trademark rights in the mark for specific goods, whether or not those rights have been registered with the United States Patent and Trademark Office. The symbol essentially announces, "I consider this to be my trademark, and I'm putting competitors on notice that I claim rights in this mark."

There are no legal requirements or restrictions on using the ™ symbol. Any individual or business can place this symbol next to any term, logo, or phrase they use as a source identifier for goods, regardless of whether they've conducted trademark searches, filed applications, or obtained registrations. However, claiming trademark rights through use of the ™ symbol doesn't create those rights—actual use in commerce as a source identifier is required to establish trademark protection.

The ℠ Symbol (Service Mark)

The ℠ symbol performs the identical function as ™, but applies to service marks rather than trademarks. A service mark identifies and distinguishes services rather than goods. Services include any activity performed for the benefit of others, such as banking, insurance, entertainment, education, hospitality, consulting, legal services, and healthcare.

Many businesses provide both goods and services. A restaurant, for example, sells food products (goods) and provides dining services. The brand name could technically use both symbols, though in practice most businesses use only the ™ symbol or wait for federal registration to use the ® symbol.

Like the ™ symbol, the ℠ symbol requires no registration, application, or governmental approval. Any business providing services can use this symbol to indicate claimed service mark rights. The distinction between ™ and ℠ is often academic—both indicate unregistered claimed rights, and the USPTO treats trademarks and service marks identically in terms of registration and protection.

The ® Symbol (Registered Trademark)

The ® symbol indicates that a trademark or service mark has been officially registered with the United States Patent and Trademark Office. This symbol carries far greater legal significance than ™ or ℠, as it can only be used after the USPTO has examined an application, approved the mark for registration, and issued a registration certificate.

The use of the ® symbol is governed by federal law under 15 U.S.C. § 1111, which provides that registration notice may be given by displaying with the mark "the words 'Registered in U.S. Patent and Trademark Office' or 'Reg. U.S. Pat. & Tm. Off.' or the letter R enclosed within a circle, thus ®."

Unlike the ™ and ℠ symbols, using ® without a valid federal registration constitutes fraud and violates federal law. Section 1111 states that any person who falsely represents that a mark is registered "shall be liable in a civil action by any person damaged thereby for any damages sustained in consequence thereof." This provision creates potential liability to competitors harmed by false claims of registration.

Moreover, courts have held that improper use of the ® symbol can result in denial of trademark infringement remedies. In Medinol Ltd. v. Neuro Vasx, Inc., 67 U.S.P.Q.2d 1205 (N.D. Ill. 2003), the court denied the plaintiff's claim for enhanced damages under 15 U.S.C. § 1117 because the plaintiff had used the ® symbol before its trademark was actually registered, finding this misrepresentation sufficient to bar enhanced remedies.

The Legal Distinctions That Matter

Registered vs. Unregistered Rights

The fundamental distinction between these symbols reflects the difference between registered and unregistered trademark rights. In the United States, trademark rights arise from use, not registration. Common law trademark rights accrue when a business uses a distinctive mark in commerce to identify goods or services, regardless of whether the mark is ever registered.

These common law rights, indicated by ™ or ℠ symbols, provide protection in the geographic areas where the mark is used and recognized by consumers. However, common law protection has significant limitations. Rights remain confined to actual trading areas and regions of natural expansion. Enforcement requires proving priority of use and consumer recognition in each relevant market. Common law owners lack the statutory presumptions of validity and ownership that registration provides.

Federal registration, indicated by the ® symbol, transforms limited common law rights into nationwide protection backed by powerful legal presumptions. Under 15 U.S.C. § 1057(c), registration constitutes constructive notice of the registrant's claim of ownership throughout the United States. This means that after registration, others cannot claim good faith adoption of confusingly similar marks anywhere in the country, even in areas where the registered owner hasn't yet established actual consumer recognition.

Under 15 U.S.C. § 1057(b), a certificate of registration issued by the USPTO constitutes prima facie evidence of the validity of the registration, the registrant's ownership of the mark, and the registrant's exclusive right to use the mark in commerce in connection with the goods or services specified in the certificate. This legal presumption shifts the burden to accused infringers to prove invalidity or non-infringement, rather than requiring the trademark owner to prove rights from scratch.

Registration also provides access to federal court jurisdiction under 15 U.S.C. § 1121(a) without requiring diversity of citizenship or jurisdictional amount minimums. This streamlined access to federal courts makes nationwide enforcement practical and economical.

Enhanced Remedies and Statutory Damages

Perhaps most significantly, federal registration provides access to enhanced remedies not available to common law trademark owners. Under 15 U.S.C. § 1117(a), courts may award successful plaintiffs their actual damages, the infringer's profits, and the costs of the action. The statute also provides that courts may increase damage awards up to three times the actual damages when appropriate, and may award reasonable attorneys' fees in exceptional cases.

For cases involving counterfeit marks registered on the Principal Register, 15 U.S.C. § 1117(c) provides statutory damages of not less than $1,000 and not more than $200,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, with potential increases to $2,000,000 per counterfeit mark if the violation was willful. These statutory damages eliminate the need to prove actual damages, which can be difficult and expensive in trademark cases.

Common law trademark owners, by contrast, must rely on state unfair competition laws and common law tort claims, which typically provide more limited remedies and require more extensive proof of damages. The ability to use the ® symbol after registration signals to potential infringers that enhanced federal remedies are available, creating deterrent effects that prevent infringement.

International Considerations

The ® symbol specifically indicates registration with the United States Patent and Trademark Office. Trademark rights are territorial—each country maintains its own registration system. A mark registered in the United States does not receive protection in other countries, and vice versa.

When businesses sell products internationally, they must consider which registration symbol to use in each market. A mark registered in the U.S. but not in Canada should use ® in the United States and ™ in Canada. Many global companies use ™ universally on international packaging and marketing materials to avoid confusion and potential violations of foreign trademark laws.

Some countries have strict regulations about use of registration symbols. Improperly using a registration symbol for a mark not registered in a particular country can result in penalties, denial of enforcement rights, or even criminal sanctions in certain jurisdictions. Businesses operating internationally should consult with trademark counsel in each relevant market to ensure compliant symbol usage.

When You Can and Cannot Use Each Symbol

Using ™ and ℠ Symbols

You can use the ™ symbol for goods or ℠ symbol for services as soon as you begin using the mark in commerce as a source identifier, even before filing any trademark application. No governmental approval, registration, or formal application is required.

However, using these symbols without actual trademark rights can be problematic. If you're not genuinely using the mark as a source identifier in commercial transactions, claiming trademark rights through symbol usage could constitute fraud or unfair competition. The symbols should only be used for marks that actually function to identify and distinguish your goods or services from those of others.

There's no legal requirement to use ™ or ℠ symbols. Many businesses use these marks without any symbols, and trademark rights accrue regardless of whether symbols appear. The symbols serve primarily as notice to competitors and the public that you claim trademark rights. From a practical standpoint, consistent use of ™ or ℠ can deter potential infringers and support enforcement efforts by demonstrating your intent to claim exclusive rights.

Using the ® Symbol: Strict Requirements

You can only use the ® symbol after the USPTO has issued a registration certificate for your mark. The registration process typically takes 12-18 months from filing to issuance, and the ® symbol cannot be used during the pendency of the application. Filing an application, receiving a Notice of Allowance, or having a mark approved for publication does not authorize use of the ® symbol—only actual registration permits this designation.

The registration must be current and maintained. If your registration is cancelled for failure to file required maintenance documents or abandoned for non-use, you must immediately stop using the ® symbol. Continuing to use ® after registration expires or is cancelled violates 15 U.S.C. § 1111.

The ® symbol can only be used in connection with the specific goods and services covered by the registration. If your federal registration covers athletic footwear but you also sell athletic apparel under the same mark, you can only use ® in connection with the shoes. For the apparel, you should use ™ until you obtain a separate registration covering clothing.

Many businesses make the mistake of using ® for variations of their registered mark. If you registered the word mark ACME but use it in a distinctive logo format, you technically cannot use ® with the logo unless you've also registered the specific design. Courts have found that using ® with unregistered variations of a mark can constitute fraud on the USPTO and result in cancellation of the registration.

Common Mistakes and Their Consequences

Using ® Without Registration: Federal Law Violations

The most serious error is using the ® symbol without valid federal registration. This violates 15 U.S.C. § 1111, which makes anyone who "falsely represents" that a mark is registered civilly liable to any party damaged by the misrepresentation.

Courts have interpreted this provision strictly. Courts hold that using ® before a mark is actually registered can support a finding of fraud sufficient to bar infringement claims. The court noted that trademark law is "strict" about proper use of the ® symbol, and "trademark applicants who use the ® symbol prematurely do so at their peril."

Beyond civil liability, improper use of ® can result in denial of otherwise valid trademark infringement claims. Courts exercising their equitable discretion may refuse to award injunctions, damages, or attorneys' fees to plaintiffs who have misrepresented their registration status. In Sovereign Military Hospitaller Order v. Florida Priory, 702 F.3d 1279 (11th Cir. 2012), the court noted that fraudulent use of the ® symbol is relevant to determining whether a plaintiff comes to court with "unclean hands," potentially barring equitable relief.

The USPTO itself may refuse to register a mark if the applicant has improperly used ® during the application process. TMEP § 906.04 states that "filing an application to register a mark, or receiving a notice of allowance, does not entitle the applicant to use the federal registration symbol ®." The examining attorney may issue an office action requiring the applicant to provide a statement that they will cease using ® unless and until registration issues.

Using ® for State Registrations Only

Many states offer trademark registration at the state level, providing protection within that state's boundaries. However, state registration does not authorize use of the ® symbol. The symbol specifically indicates federal registration with the USPTO.

Businesses with only state registrations should use ™ or ℠, possibly with accompanying text such as "Registered in the State of New York" if desired. Using ® with only a state registration violates federal law and creates the same risks as using ® without any registration.

Inconsistent Symbol Usage

Some businesses inconsistently apply trademark symbols, using ® in some contexts and ™ in others for the same mark. This inconsistency can create evidentiary problems in trademark disputes. Courts may question whether a mark was truly being used as a trademark if symbol usage is haphazard or varies by context.

Best practice is to establish clear guidelines for symbol usage and apply them consistently across all uses of the mark. For federally registered marks, use ® consistently. For unregistered marks, use ™ or ℠ consistently. Create brand guidelines documenting proper symbol usage and train employees and vendors on compliance.

Symbol Placement Errors

While symbol placement is more a matter of style than law, conventions exist that enhance trademark protection. Symbols typically appear as superscripts in the upper right corner of the mark or logo: ACME® or ACME™. Some companies place symbols after the mark at baseline level: ACME®.

The key legal requirement is that the symbol appears in proximity to the mark itself, making clear which term or logo is claimed as a trademark. Placing ® at the end of a sentence or paragraph, disconnected from the mark, fails to provide adequate notice of trademark rights.

For composite marks combining words and design elements, the symbol typically appears after the entire mark. If registering both word and design marks separately, some companies use multiple symbols or footnotes explaining which registrations apply to which elements.

Best Practices for Trademark Symbol Usage

Before Filing: Use ™ or ℠

During the development phase of a new brand, before filing any trademark application, use ™ for goods or ℠ for services to indicate claimed trademark rights. This practice provides notice to competitors and helps establish evidence of trademark use and intent to claim exclusive rights.

Even without federal registration, consistent use of ™ or ℠ supports common law trademark rights by demonstrating that you treat the mark as a source identifier rather than merely a decorative or informative element. This evidence can be valuable if disputes arise before registration issues.

During Application: Continue ™ or ℠

After filing a trademark application but before registration issues, continue using ™ or ℠. Do not use ® based merely on having filed an application or received approval for publication. Many applications are filed but never result in registration due to abandonment, refusal, or opposition. Using ® prematurely exposes you to liability under 15 U.S.C. § 1111.

Some applicants add footnotes or disclaimers such as "ACME™ [Registration Pending]" to indicate that formal application has been made. While not legally required, this practice can provide additional notice to potential infringers that formal rights are being pursued.

After Registration: Switch to ®

Once you receive your registration certificate from the USPTO, immediately begin using ® in place of ™ or ℠. The registration certificate will include the registration number and issue date. Update all marketing materials, packaging, websites, and other uses of the mark to include the ® symbol.

This transition should be thorough and systematic. Create a checklist of all places where the mark appears—business cards, letterhead, websites, product packaging, signage, advertising, social media—and update each systematically. Many businesses maintain both registered and unregistered marks; creating a comprehensive trademark symbol chart helps ensure consistent compliance.

Maintain Registration and Update Usage

Federal registrations require maintenance filings to remain active. Between the 5th and 6th year after registration, you must file a Section 8 Declaration of Use (or Excusable Non-Use). Between the 9th and 10th year, and every 10 years thereafter, you must file a combined Section 8 Declaration and Section 9 Renewal.

If you fail to file these maintenance documents, your registration is cancelled, and you must immediately stop using ®. Continuing to use ® after cancellation violates federal law. Calendar these deadlines carefully and consider working with trademark counsel to ensure timely filing.

Additionally, monitor your actual use of the mark. The ® symbol can only be used for goods and services covered by the registration. If you expand into new product lines or services, you should file additional applications to cover those new offerings. Until those registrations issue, use ™ or ℠ for the new goods or services, even if using ® for the originally registered items.

Strategic Considerations for Symbol Usage

Building Brand Value Through Proper Symbol Use

Consistent and proper trademark symbol usage contributes to brand value by signaling to consumers, competitors, and investors that you take intellectual property protection seriously. The ® symbol particularly communicates that your brand has been vetted by the USPTO, successfully overcame any objections, and enjoys federal protection.

This perception enhances brand credibility. Consumers may view federally registered brands as more established and trustworthy than unregistered competitors. Investors and potential acquirers often consider trademark portfolios when evaluating business value, and proper symbol usage demonstrates sophisticated IP management.

International Brand Strategy

For businesses operating internationally, symbol strategy becomes more complex. The ® symbol in the United States indicates U.S. registration only. If your mark is also registered in the European Union, United Kingdom, Canada, or other jurisdictions, you might use ® in the U.S., but different symbols or no symbols in other markets where different registrations apply.

Many multinational corporations adopt simplified approaches, using ™ universally to avoid confusion and potential liability from incorrect symbol usage in various jurisdictions. Others maintain regional marketing materials with appropriate symbols for each market. The strategy depends on brand priorities, legal requirements in key markets, and practical considerations of maintaining multiple versions of marketing content.

Enforcement and Deterrence

Proper symbol usage supports trademark enforcement by providing constructive notice under 15 U.S.C. § 1111(b). This notice provision states that use of registration symbols or language serves as "notice of the registrant's claim of ownership of the mark." This constructive notice prevents infringers from claiming good faith or innocent infringement defenses, potentially affecting available remedies and damages.

The deterrent effect shouldn't be underestimated. Competitors researching trademark availability typically view properly marked registered trademarks as significant obstacles. A mark displaying ® signals federal protection, nationwide rights, and the availability of enhanced remedies including statutory damages and attorneys' fees. This can discourage adoption of confusingly similar marks and reduce costly infringement disputes.

Getting Started with Proper Trademark Protection

Understanding trademark symbols is only the first step in comprehensive brand protection. The distinction between ™/℠ and ® reflects the broader distinction between common law rights and federal registration—and federal registration provides dramatically stronger protection for your brand investment.

At Yomtobian Law, I guide businesses through the complete trademark registration process, from comprehensive clearance searches through application filing, office action responses, and registration maintenance. My services include:

• Comprehensive Trademark Searches: $2,000 for thorough searching of federal registrations, pending applications, state registrations, common law uses, and domain names to identify potential conflicts before you invest in brand development.

• Federal Trademark Applications: $2,000 for complete application preparation, filing, and prosecution, including responses to office actions. USPTO filing fees of $350 per class are additional.

• Registration Maintenance: Monitoring and timely filing of Section 8 Declarations and Section 9 Renewals to maintain your registration and your right to use the ® symbol.

• Portfolio Management: Ongoing guidance on proper symbol usage, brand expansion strategies, and enforcement recommendations to maximize the value of your trademark investments.

Don't risk the penalties of improper symbol usage or the limitations of unregistered common law rights. Contact Yomtobian Law today to discuss federal trademark registration and build the foundation for lasting brand protection.

Ready to earn the right to use ®? Let's get your mark federally registered. Contact Yomtobian Law for comprehensive trademark services that protect your brand and give you the legal foundation to display that ® symbol with confidence.

Frequently Asked Questions

Q: Can I use ® if my trademark application is pending but not yet registered?

No. You cannot use the ® symbol until the USPTO has issued an actual registration certificate. Filing an application does not authorize use of ®, even if the application has been approved for publication. Use ™ or ℠ during the application process and wait for the registration certificate before transitioning to ®.

Q: What happens if I accidentally use ® before my mark is registered?

Immediately stop using ® and revert to ™ or ℠. Document when you discovered the error and corrected it. While improper use of ® violates federal law, courts typically focus on willful or knowing violations. Promptly correcting inadvertent errors demonstrates good faith and may minimize consequences. However, if the error occurred during the application process, the USPTO may require a statement that you will cease improper use.

Q: Do I have to use trademark symbols at all?

No. Use of ™, ℠, or ® symbols is optional, not required by law. Trademark rights arise from use of marks in commerce, regardless of whether symbols appear. However, using symbols provides important benefits. ™ and ℠ give notice of claimed rights. ® provides constructive notice under 15 U.S.C. § 1111 and helps support enhanced remedies in infringement cases.

Q: Can I use ™ for a registered trademark instead of ®?

Yes, but it's not advisable. Once you've obtained federal registration, using ® instead of ™ provides greater deterrent effect and legal advantages. Section 1111 of the Lanham Act states that use of registration notice under that section may be required to recover profits and damages in certain infringement cases. Failing to use ® may limit your remedies.

Q: How do I use trademark symbols with multiple marks in one product name?

If your product name contains multiple trademarks, use the appropriate symbol for each mark. For example, "ACME® Brand SUPER™ Widgets" indicates that ACME is federally registered while SUPER is an unregistered trademark. If this becomes visually cluttered, some companies use footnotes explaining trademark ownership and registration status.

Q: What if my mark is registered in my state but not federally?

Use ™ or ℠, not ®. The ® symbol specifically indicates federal registration with the USPTO. State registrations do not authorize its use. You may add text such as "Registered in Texas" if desired, but cannot use the ® symbol based solely on state registration.

Q: Can I use ® for my logo if only the word mark is registered?

No. The ® symbol can only be used for marks that are actually registered. If you registered the word mark ACME but use a distinctive logo design, you can only use ® with the word mark in standard characters. For the logo, use ™ unless you've also obtained a separate registration for the design mark.

Q: Do I need to use ® every time my mark appears?

Not necessarily. As a practical matter, most businesses use ® or ™ on the first or most prominent use of the mark in marketing materials, documents, or web pages, then omit symbols in subsequent mentions. However, consistent use provides stronger notice and protection. Develop brand guidelines that specify when and where symbols should appear.

Q: What about using ® on social media?

The same legal requirements apply to social media as to other contexts. Use ® only for federally registered marks and only in connection with the registered goods or services. Many social media platforms have character limits that make consistent symbol usage challenging. Some businesses use symbols in profile descriptions or pinned posts while omitting them from individual tweets or posts due to space constraints.

Q: If my trademark registration is challenged or someone files a cancellation petition, can I still use ®?

Yes. Unless and until your registration is actually cancelled, it remains valid and you may continue using ®. Filing of a cancellation petition or the pendency of a TTAB proceeding does not automatically invalidate your registration. However, if your registration is ultimately cancelled, you must immediately stop using ® and revert to ™ or ℠.