by Sheren Javdan
August 23, 2014
Trademarks are words, names or symbols used by business, product or service owners to differentiate their merchandise or services from those of others while indicating that they own the sole right to use the marks in commerce. Trademarks also serve as brand indicators to consumers by creating brand recognition and reputation.
Although infringement rights are simplified once a trademark is registered, many consumers are still confused when interpreting the difference between ®, ™ and ℠ and when they should be used.
® Registered Trademark Symbol
Trademark owners may only use the ® symbol to identify marks that have been federally registered on either the Principal or Supplemental United States Patent and Trademark Office (USPTO) registers. Marks that have received a registration certificate may then display the ® symbol to put the world on notice.
Most trademarks are registered on the Principal USPTO register and are afforded the most protection offered by trademark laws. However, words, names and symbols that are merely descriptive and lack a distinctiveness, that is they merely describe the product or service being trademarked, will remain on the supplemental register until they achieve a secondary meaning.
Trademark owners should be advised that the illegal use of the ® symbol on one’s goods or services may result in penalties unless he or she can provide evidence that the use was a good-faith mistake.
The USPTO may cancel a users’ trademark for a variety of reasons without the users’ knowledge. Although cancelled, users’ products or services may still accidentally display the ® symbol leading to an accidental and illegal use of the symbol.
™ Trademark Symbol
The ™ symbol is used to identify goods that have not yet been registered with the USPTO. No specific formalities or paperwork must be followed in order to use the symbol. In addition, individuals with pending trademark applications may use the ™ or ℠ symbol when their trademark application is under review with the USPTO.
The symbol may be displayed by business owners to notify the general public and competitors that he or she considers the product to be exclusively his or hers.
℠ Service Mark Symbol
The ℠ symbol is used to identify services that have not yet been registered with the USPTO.
Why Should I Display a ®, ™ or ℠ Symbol?
Although using a trademark symbol is not required by law, doing can be very beneficial for trademark owners.
Most importantly, in order to recover damages against an individual who has infringed on your trademark rights, you must prove that the infringer had notice of your mark. Damages can include lost profits, attorney fees and court fees.
Unless trademark owners can supplementally prove that an infringer had actual notice of the trademark, an owner will relinquish his or her right to damages.
Proper notice may be given three different ways. First, in the form of a ®, ™ or ℠ symbol. Secondly trademark owners may use an asterisk (*) in coalition with the mark to notify others of the trademark.
Lastly, trademark owners may put infringers on actual notice by writing them a correspondence notifying them of the trademark.
Another important reason to display a trademark symbol is to notify consumers of the trademarked good. Trademarked goods provide consumers with a sense of comfort and reliability that increases sales and profits in the business.