The Difference Between ® and ™

A trademark is any word or symbol (color, sound, or scent) that tells consumers who made a product or who provides a service. It is your brand.

There are three ways to get trademark protection for your brand:

1. Common Law Rights. Companies or individuals can obtain some rights in trademarks just by using them in commerce. This is called “common law” protection and gives the company the exclusive right to use the mark in the area of actual use, plus a reasonable zone of expansion. Common law protection allows you to prevent other businesses in the same geographical area from using a trademark that is substantially similar to the proposed mark, and that would be likely to cause confusion to the consumer between the proposed good or service and the other good or service.

2. Companies or individuals can obtain exclusive rights to use the trademark in a particular state by obtaining a state registration. A state registration gives you the right to stop others from using a substantially similar trademark anywhere in the state, regardless of where in the state you are actually using the proposed trademark. Obtaining a state registration takes a few months.

3. Companies or individuals using their marks in interstate commerce can obtain exclusive rights to use the trademark in the United States by obtaining a federal registration. A federal registration gives you the right to stop others from using a substantially similar trademark anywhere in the United States, regardless of where in the country you are actually using the proposed trademark. Obtaining a federal registration usually takes more than a year, but it can be much longer.

It is not required, but I encourage my clients to put a notice on their trademarks to let others know they take their IP seriously and protect it.

The proper notice for a common-law trademark, state trademark registration or federal trademark application that has not matured into a registration is the TM symbol or the SM symbol (means service mark, but you can use TM for everything).

The proper notice for a federal trademark registration is the ® (R-in-a-circle) symbol. Note: it is improper to use the ® symbol without a federal registration, on goods or services that are not contained in your registration, or after your trademark has expired. You may be liable for false advertising or fraud, and may not be able to bring certain suits because of “unclean hands” in misusing the federal trademark registration symbol.