Trademarking 101: Use Trademark Symbols

We have all seen the ® and ™ symbols in advertisements, products, or packaging.  In order to enjoy the full benefits of trademark rights, it is necessary for a trademark owner to tell the world that it owns rights to the trademark.  I say “full benefits” because a trademark owner may be able to enjoy some rights to the trademark even without proper display of a symbol.  Nevertheless, always using the proper symbol alongside your trademarks is a good habit to adopt.  This article discusses why and how you should designate your trademarks.

Why you should use a trademark symbol

Proper use of a trademark symbol tells the world that you claim rights to the use of the trademark in connection with a good or service.  If a competitor sees that your name, slogan, or logo has a trademark symbol next to it, that competitor is put on notice that it should not use a confusingly similar name, slogan, or logo.  Also, consumers will know that your trademark is not the actual (generic) name of the good, but instead a product being sold by a company (think Kleenex ® vs. facial tissues or Xerox ® vs. photocopiers).  Finally, proper use of a symbol will allow a trademark owner to seek greater remedies in a trademark lawsuit.  Specifically, a trademark owner who fails to put the appropriate trademark symbol next to its trademark will be limited to the recovery of lost profits and damages beginning at the time when the competitor became actually aware of the trademark.  If the trademark has the proper symbol, the competitor may be liable for damages dating back to the time when the trademark owner began displaying the appropriate symbol with the trademark, whether or not the competitor actually knew about the owner’s trademark.

How you should display a trademark symbol

First, you need to determine which trademark symbol is appropriate.  This will be determined based on whether you are using a trademark in connection with goods or services and whether your trademark is registered.  The following guide should be helpful:

  • ® – This symbol is used to indicate that a trademark is federally registered.  The same trademark is used for both trademarks (marks used in connection with goods) and service marks (marks used in connection with services).
  • ™ – This symbol is used to indicate that a trademark (used in connection with a good) is not registered, but a company is claiming “common law” rights to the trademark.
  • ℠ – This symbol is used to indicate that a service mark (used in connection with a service) is not registered, but a company is claiming “common law” rights to the mark.

Most companies have many trademarks they use, or several variations of their trademarks.  A company should independently evaluate whether these trademarks are registered and mark them appropriately.

When you should display a trademark symbol

Now that you know which symbol to use, you need to know when you need to trademark.  You should place the appropriate trademark symbol next to your name, logo, or slogan whenever you place your trademark on advertisements, products, packaging, or anywhere else you display your trademark to the public.  Most companies use smaller superscript font (i.e. dcbrewlaw™) to display the symbol.  This practice should be sufficient to put others on notice that you intend to claim rights to, or have registered the trademark.

Following these guidelines will help you protect the good will and investment you have put into developing your brands.