Wednesday, March 25, 2009

Trademark Symbols - What to Use and When

The use of trademark symbols is governed by federal regulation, federal law, and even state law. The symbols include the following:

1. ™, which stands for trademark
2. SM, which stands for service mark
3. ®, which stands for registered trademark

While the use of trademark symbols differ under foreign laws depending upon the jurisdiction, this article will focus on use of trademark symbols within the United States.

The ™ and SM can be used with a mark by anyone who is claiming rights to that mark. There is no need to have a federal registration with the United States Patent and Trademark Office (USPTO) in order to use either the ™ or SM symbols. Instead, a belief that the entity owns a distinctive mark as used in connection with certain goods or services is sufficient.

The use of the ® symbol does have specific requirements. This traditional trademark signifies ownership of a federal registration. This mark may be used once the trademark or service mark is actually registered with the USPTO on either the Principal or Supplemental Register of the USPTO. It is important to recognize that merely filing an application with the USPTO, withstanding an opposition, or having the mark approved for publication is insufficient to warrant use of the ® symbol. Only upon actually receiving a Certificate of Registration from the USPTO can the owner of that trademark or service mark be permitted to use the ® symbol. In addition, the federal registration symbol should only be used in connection with the goods or services that are listed within the certificate of registration.

That said, foreign countries have their own laws with regard to the use of the registered ® symbol. Therefore, it is important to determine which countries use the ® symbol to indicate that a mark is registered in their country before assuming that the owner of the mark has a USPTO trademark. For example, such countries as China, Germany, and the Netherlands also use the ® symbol.

One who improperly uses the federal registration symbol with a deliberate intent to deceive or mislead the public may be liable for fraud. Although fraudulent intent is usually required, one should not use the ® symbol unless permitted by law. Improper uses may include use based upon state trademark registration, placement on an entire mark or portion thereof despite the registration pertaining to something otherwise, use on the mark relating to goods to which the registration does not pertain, or use despite the registration having been recently expired or cancelled.

Just as proper trademark monitoring and protection is critical to ensure that trademark rights persist, use of the appropriate trademark symbol is also important. Therefore, knowing whether to use the ™, SM, or ® symbol and at what point in your trademark use will be critical.

Brian A. Hall is an attorney and partner of Traverse Legal, PLC, a law firm focused on complex litigation, intellectual property matters, internet law and trademark registration and prosecution. Speak with a trademark registration attorney today to learn more about what trademark symbol to use and when to properly to use it

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