TM vs ® Symbol: Which One Can Your Brand Use?

You can put TM next to your brand name today. No filing, no approval and no fee are required, because TM simply announces that you claim the name as a trademark. The ® symbol is different. Federal law reserves it for marks the USPTO has actually registered, and the TM vs ® symbol question comes down to a single fact: has a registration certificate issued for this mark, for these goods or services? If not, stay with TM. The firm’s trademark law practice sees the wrong symbol on packaging more often than you would expect, and the mistake is easy to avoid.

TM vs ® symbol: what TM and SM actually do

TM stands for trademark and is used with goods. SM stands for service mark and is used with services, though many businesses use TM for both and no rule forbids it. Neither symbol has legal force of its own. You may use them on an unregistered mark, on a mark with a pending application, or on a mark you never intend to register.

What the symbols do is signal intent. They tell competitors that you treat the term as a brand rather than a description, which discourages casual copying. They also help you later. When a dispute turns on whether a word was used as a trademark or merely as decoration or product description, a consistent TM next to the term is evidence that you meant it as a source identifier. The rights themselves come from use, as our post on trademark rights without registration explains, and the symbol is a flag on top of those rights.

When you can use the ® symbol

The ® symbol may be used once the USPTO issues the registration certificate, and only in connection with the goods and services listed in that registration. A pending application does not qualify, and neither does a Notice of Allowance on an intent-to-use application, because the mark is not registered until the Statement of Use is accepted and the certificate issues. A state trademark registration does not qualify either; the ® symbol is a federal notice.

Section 29 of the Lanham Act gives you two ways to give notice: the ® symbol, or the words “Registered in U.S. Patent and Trademark Office” or the abbreviation “Reg. U.S. Pat. & Tm. Off.” The notice matters because, without it, you cannot recover profits or damages from an infringer unless you prove the infringer had actual notice of your registration. Injunctive relief remains available, but the money does not, and in a case over lost sales that is the point.

Registrations on the Supplemental Register may also use the ® symbol. The register you are on affects the presumptions you get, not the notice you may give.

What happens if you use ® too early

Using the ® symbol on an unregistered mark is improper. In most cases the consequence is a correction: an examining attorney who sees ® on a specimen for a mark that is not registered may ask for an explanation, and you remove the symbol. The problem becomes serious when the use looks deliberate. A knowing claim that a mark is registered when it is not can be treated as a misrepresentation to the public, and opposing parties raise it in trademark enforcement and TTAB proceedings to argue that you came to the dispute with unclean hands. That argument can cost you remedies you would otherwise have earned.

Foreign brand owners run into a related trap. A registration in Türkiye, the European Union or anywhere else does not permit the ® symbol in the United States. If your packaging carries ® because of a home-country registration, it should carry TM in the U.S. market until the USPTO registration issues.

Where to put the symbol

There is no rule requiring the symbol on every appearance of the mark. Common practice is a superscript symbol at the upper right of the mark on its first or most prominent use on a page, package or screen, with a footer notice stating that the mark is a registered trademark of your company. For a logo, the symbol sits at the edge of the design. For a word mark used in body text, a single symbol on the first mention is enough.

Keep the symbol consistent with the registration. If you registered a word mark, you may use ® with the word in any stylization. If you registered only a logo, the ® belongs with the logo, and the plain word should carry TM until a word-mark registration issues through our trademark registration practice.

Mistakes we see on packaging and websites

• Applying ® to every product in a line when the registration covers only one class of goods.
• Switching to ® on the day the application is filed instead of the day the certificate issues.
• Dropping TM after launch and leaving the mark with no symbol at all.
• Using ® on a mark that has lapsed because a maintenance filing was missed, which is the same as using it on an unregistered mark.
• Marking a slogan with ® when only the house mark is registered.

Each of these is a quick fix if caught during a brand audit and a nuisance if caught by an opponent.

If you are unsure which symbol belongs on your products or whether your registration still supports the ® symbol, a consultation with Capitol Law Partners can sort it out quickly. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.

Need help with this topic? See our trademark law and brand protection page or schedule a consultation.