The Many Marks of Trademarks

Dear Mary, I have a new product that’s about to go on the market. I’ve noticed that some of my competitors have “TM” after the product name, or an “R” with a circle around it. What’s the difference? Do I need to add something after the name of my product?

There are several different designations for trademarks and service marks, and they each mean something different. A trademark is a word, phrase, symbol and/or design that helps consumers identify the source of a product and distinguish it from products owned by others. A service mark identifies the source of a service instead of a product. People often use “trademark” to mean both trademarks and service marks. Companies also sometimes try to protect sounds, smells, and even tastes as non-traditional trademarks, although registering source-identifying taste is nearly impossible.

A letter “R” with a circle around it signifies that the name is a registered trademark, meaning that the mark is registered with the U.S. Patent and Trademark Office, or another country’s trademark office. An owner of a mark can apply for federal registration, although it’s not required. Registration puts the public on what’s called “constructive” or “legal” notice that the owner claims an ownership interest in the mark. The ® symbol may be used only after an applicant receives approval for a registration, not while an application is pending.

The letters “TM,” often in superscript, typically means that the owner does not have federal registration of the mark, but is claiming either common law rights or a state registration. Anyone can use this symbol if they wish to claim a mark as their own. No paperwork or permission is necessary to use the TM symbol.

The letters “SM,” again often in superscript, are used just like the letters “TM,” except they refer to an unregistered service mark identifying services instead of goods.

In your case, if you do not want to register your trademark, but you would like to protect your mark and claim it as your own, I recommend putting “TM” next to it. Be sure that your mark truly is unique — if someone else is using the same or similar name you might be infringing on their trademark.

Registering your mark provides many advantages, including putting the public on notice of your ownership of the mark. There is a legal presumption that if your mark is registered, you have the exclusive right to use the mark. This can be extremely important later if someone tries to sell a product that looks or sounds like your mark.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached atmary@hudsonluros.com or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.