Have you ever picked up an item at the store or seen an ad where the item name or tagline is prominently displayed with a tiny TM or SM or the letter R in a circle ®? If so, have you ever wondered what those symbols meant or what is the difference between the three? As a consumer, you are subject to hundreds of brand images, slogans, and logos every day. With these images, you will most of the time find TM, SM, ® symbols next to brand names, slogans, etc. which means the owner’s claim on that particular brand. However, each symbol has its own special meaning that indicates where the owner currently stands in the branding process.

The symbols “TM” (trademark) and “SM” (service mark) may be used if the owner claims the right to use the mark. The “TM” must be used with products, while the “SM” must be used with services. The designation “TM” or “SM” alerts the public of the owner’s claim of a “common law” use of the mark. The “TM” or “SM” can also be used to indicate that a trademark application for the mark is currently pending with the United States Trademark Office (USPTO). However, you do not need to register your trademark with the USPTO to use the “TM” or “SM” symbol. Even if the USPTO refuses to register your trademark, you can still use the symbols in your trademark, which again means a common law use. These symbols let others know that you are claiming rights to the trademark. However, common law rights do not give you all the benefits that a federal registry provides.

You are only allowed to use the federal registration symbol R-in-a-circle ® after the USPTO issues you a registration of your trademark. You cannot use the ® symbol if your application is currently pending with the USPTO. You should only use the ® symbol when your trademark is used on or in connection with the goods / services listed in your federal registration and it should only be used on trademarks that are active (you have paid all fees necessary to maintain your trademark registration). Using the trademark registration symbol with a mark that is not registered with the USPTO is considered misuse of the symbol and a misrepresentation by the consuming public, which may be actionable in a court of law.

There are no specific rules about where the trademark symbol should be displayed. Most companies / people place the symbol in the upper or lower right corner of the mark. Owning a federally registered trademark offers many benefits that owning just a “common law” trademark does not. Some examples of these advantages include: public notice of your claim of ownership of the brand, a legal presumption of your ownership of the brand and your exclusive right to use the brand nationwide in connection with the products / services listed, and the ability to bring a trademark-related action in federal court.