What is Trademark vs. Registered?

The trademark symbol (TM) is a mark that companies often use on a logo, name, phrase, word, or design that represents the business. The registered symbol (R) represents a mark that is a registered trademark with the United States Patentand Trademark Office (USPTO).
Some people think you can use the two interchangeably, but this is not the case. The TM symbol actually has no legal meaning. You can use the symbol on any mark that your company uses without registering it.
The most common use of the TM symbol is on a new phrase, logo, word, or design that a company plans to register through the USPTO. The symbol can indicate your intent to move forward with obtaining a legal trademark. It also helps stake your claim in the design, alerting competitors that you plan to use it for your business.
But as mentioned, there is no legal protection when using TM. If you use a mark that infringes on someone else's trademark, you still put yourself at risk for legal trouble. When a company or person holds a trademark on a specific design, the mark has restricted use. Only the owner can use, produce, copy, or profit from it. In the event that someone else tries to copy it, that owner can take legal action in a federal court.
So before you add TM to the end of your mark, do some research. You'll need to make sure that no similar mark already exists in the Trademark Electronic Search System. If you find something similar, the next step is making changes to your mark so that it doesn't infringe.
Once you've determined that your mark is truly unique, you can start using the TM symbol at the end. The three main placement techniques for notifying competitors of your intent to use the mark are:
  • Placing a symbol (TM, ®, * [asterisk], or dagger/double dagger) at the first use of the trademark but not on subsequent uses, then adding a footnote that overviews the trademark
  • Placing the TM or ® symbol next to the trademark every time you use it
  • Using a different font or formatting, such as bold, italic, or uppercase, for the trademarked words to differentiate them from other text.
An example of a footnote for the techniques listed might be something like: "The Apple logo is a registered trademark of Apple, Inc." You may also choose to include a reference to the legal trademark, such as "The Apple logo is a trademark registered in the U.S. Patent & Trademark Office." It's also acceptable to abbreviate the second portion as "Reg. U.S. Pat. & Tm. Off."
It's widely accepted to place it at the top left corner of the mark in superscript text. If it doesn't look good there, you can drop it to the bottom right corner in subscript text. But putting it elsewhere is rare.
When you add TM to the mark, it makes sense to move forward with the trademark application. Make sure you include all required documentation.
If you're submitting a mark that only contains words, your trademark application must include a mockup of the word or words as you plan to use it/them. When you're trademarking a logo or symbol, include an image of the mark exactly how it will look when you use it on your product, collateral, or other materials.
It's also important to note that you'll only receive trademark protection on the exact design. So you may want to file several applications for a logo or symbol. If you plan to use it in more than one color, submit an application for each version, including one in black and white. This protects your mark in all forms.
Once you receive approval on your trademark application, you can legally start using the registered symbol. Using the symbol shows all competitors, customers, and others in the industry that you legally own the rights to this mark.
When using either mark in print, the general rule is to use it in the first instance of the mark. After that, you can stop using it without losing the legal protection.

Why is Trademark vs. Registered Important?

There are four main reasons that trademark laws exist:
  • Trademarks protect consumers from buying poor quality products from another manufacturer
  • Trademarks advertise services and goods
  • Trademarks guard the commercial interests of a company
  • Trademarks identify the origin of a specific product or service 
Using the TM symbol isn't as important or regulated as using the registered symbol on your company's mark. Because TM doesn't have any legal meaning, you don't actually have to use it unless you want to. But it does serve a purpose in helping alert others in your industry that you are laying your claim on this design, phrase, or word for your business.
The purpose of registering a trademark is to avoid confusion among consumers. Prior to trademark laws, companies could copy each other's designs or create similar marks. This led to confusion because consumers didn't know exactly what company made a specific product.
Without clear logos, symbols, phrases, words, or other designs, it's hard to stay loyal to a brand. But when companies could use something nearly identical on their packaging, customers might not be able to tell the difference.
When you attach the trademark notice to your mark, in the form of the TM or registered symbol, it's important to use it regularly and consistently across packaging, products, tags, labels, promotional materials, signs, letterhead/stationary, advertising materials, and all other items relating to your brand.
You could face the same problem if you don't register your mark with the USPTO. A competitor can purposely use a similar mark to cause confusion and encourage customers to buy its product instead.
There are some basic laws that protect businesses, including the common law trademark rights. These rights offer protection if you've been using the mark in regular business practices. But it's nearly impossible to prove who used a mark first, especially if neither company filed a trademark application. What's worse is that if the competitor files first, the USPTO will look at the filing date as the most important piece of information when deciding who gets the trademark.
Common law trademark rights also take second place to trademark laws. So if you're using a mark that is too similar to another mark that holds a trademark, you could face legal trouble. The owner of the trademark can sue you for damages that occurred while you used the mark. Damages refers to how much money the company or person lost due to confusion in the marketplace. Before using any type of mark, be sure you search extensively to avoid infringing on someone else's trademark.
It's also your decision if you want to use the registered mark, as this isn't required. The only legal requirement around its use is using it after your trademark application has been approved. Using it before the approval comes through is against the law.
Not using the registered symbol on your mark comes with some risk as well. Without indication that the mark holds trademark protection, someone else might use it. That person could even try to file a trademark application on the similar mark. While it likely won't be approved, it still wastes time and money for everyone involved.
It's also much more difficult to provide trademark infringement if the defendant states that he or she didn't know the mark had trademark protection. Using the registered symbol serves as a way to inform all who see it that it is registered with the USPTO. It will also hold up well in court if the infringer tries to claim that he or she had no knowledge that you held the trademark on the mark.

Reasons to Consider Using Trademark vs. Registered

Using the TM symbol is a matter of personal preference. It doesn't mean anything from a legal standpoint, so it won't hold up against someone trying to copy your mark. But it does bring awareness to your competitors, so that may be worthwhile to you. Using TM also doesn't require much work nor does it have a cost associated with its use, so it makes sense to add it to the mark.
The legal restriction is around using the registered symbol before your trademark receives approval from the USPTO. A trademark application could take between 6 and 16 months to process, so during the time in which your application is pending, you may only use the TM symbol. Upon approval, you can immediately start using the registered symbol.
You don't have to register your trademark, although this comes with some risk. Other companies could create something similar, then file an application for a trademark. If the USPTO isn't aware of your mark, there would be no reason to reject the application from your competitor. If the application goes through, you could end up infringing on the trademark rights of your competitor. You could also lose out on the option to use the mark at all in the future.
Five years after you register a trademark, the mark becomes incontestable, which means that you hold clear evidence of your right to use that mark. Incontestable trademarks hold more protection against infringement and limit the defenses that someone infringing on the trademark can raise.

What Could Happen When You Don't Use Trademark vs. Registered?

If you don't use the TM symbol on your logo, symbol, design, phrase, or word, your competitors may not know that you're claiming this for your business. Some companies use multiple logos to test the water, so it's hard to know for sure which one they plan to use as the main option. But with a TM at the end of the mark, there is no question that this is the one that will represent the company.
If you don't use the registered mark, you may lose out on the right to take legal action against someone who infringes on your mark. Without that clear indication that you hold trademark protection, a company owner could argue that he or she never knew.

Common Mistakes

One common mistake is believing that the TM and R symbols are interchangeable. Anyone can use the TM symbol without legal repercussion. But the R symbol is only for marks that have trademark protection from the USPTO.
It may also be a mistake to not use either the TM or R symbol on your mark. Without the TM symbol, your competitors won't know for sure that you're planning to register the mark. Using the R symbol also offers legal protection if someone tries to copy your design.

Frequently Asked Questions

  • What does the TM symbol mean?
TM stands for trademark, although its use does not mean the associated mark holds legal protection. Anyone can use the TM on a symbol, phrase, word, or design. It indicates to competitors that the company using it stakes its claim on this particular design. Many companies also use it on their marks when the trademark application is in process with the USPTO. In this case, it means that the trademark is pending.
  • What does the ® symbol mean? 
When a mark includes the (R) symbol, this means that it has an approved trademark through the USPTO. You cannot legally use the registered symbol until you receive approval on your application.
  • Do I have to register my mark?
Registering a trademark is not a requirement under any law. But failing to do so puts your company at risk. Another entity could register a similar mark, causing you to lose the opportunity to register yours in the future. Additionally, if the other company receives approval on the application, continuing to use your similar mark puts you in legal trouble. The competitor can sue you for trademark infringement.

Steps to File

  • Search the database to make sure a similar or identical mark doesn't already hold a trademark
  • Complete and file the application with the USPTO
  • Track the progress of your application through the Trademark Status & Document Retrieval website. Your application will be available on the site within 14 days of electronic filing. 
Understanding the difference between the trademark symbol and the registered symbol will help protect your company and your intellectual property. Never use the (R) unless you have an approved trademark application through the USPTO. Once you receive approval, you can only use the registered symbol on the exact mark that was approved. Any changes to your mark require you to file a new application and start the process again.
If you need help with using trademark vs. registered, you can post your question or concern on UpCounsel's marketplace. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.


What’s the difference between TM and R?

As always, there are regional differences in legislation and practice on which specific advice should be sought. However, there are some generalities across most regions which can provide some basic information.
The TM symbol can generally be used by any person or business to indicate that a particular word, phrase or logo is intended to serve as an identifier for the source of that product or service. You do not have to have registered a trademark to use it and many companies will opt to use the TM symbol for new goods or services in advance of and during the application process.
The R symbol indicates that this word, phrase or logo is a registered trademark for the product or service. It must only be used in the case of registered trademarks and by the owner or licensee. It also must only be used in the regions in which you possess a valid trademark registration.

Why does it matter?

I have said it before but it is worth saying again - the area of trademark law is an immensely complex one with little things that you do or don’t do having a critical impact if things go wrong….and they do with appalling regularity. It is without doubt worth a small investment to discuss your particular circumstances with a trademark attorney. The below should not be treated as an exhaustive list of considerations but rather as a small group of illustrations as to why that advice may be required:
Online you may see many discussions which tend towards thinking that the use of such symbols is irrelevant (and indeed the registration of a trademark at all) and has no impact on the level of protection you enjoy. Perhaps that it is true in some regions but not in all.
In the first instance, where you are using a word, phrase or logo as a trademark intending it to identify you or your company as the source of products or services, you have the option in many countries to do this without applying to register a trademark - known as ‘common law’ use. In ‘common law’ regions, you do absolutely enjoy some protections but those are not equal to the protections that you would enjoy as the owner of a registered trademark.
Use of the TM symbol in cases where you don’t wish to or cannot obtain a registration can be a strategic decision. For example, where your mark or brand is not registrable due to descriptiveness, consistent use of the brand can eventually lead you to acquire distinctiveness which might permit registration. In this case, using the TM symbol alongside the brand over a period of time potentially allows you to illustrate that you have been using this brand as a trademark over an extended period of time and it has become recognisable in the marketplace as serving as a distinct identifier for your business.
Use of the TM symbol in the case of unregistered marks can also signify to the public at large (and potential infringers) that you have the legalities of protecting your brand in mind. This may serve, in some cases, to act as a deterrent to infringement. It should also be borne in mind, that in the creation of a brand, you are creating an intangible but material asset of your company. For potential investors, this can be a critical factor in the decision making process. While an unregistered brand name may have some value, it is not comparable with the asset potential of a registered brand.

Why is there so much variation in how different companies use the different trademark symbols?

There is no single right or wrong approach. There are myriad considerations to bear in mind with each choice to use an appropriate symbol or not. Or indeed to use it selectively in various ways through different channels and media. Some of these considerations have legal implications and others will form part of your marketing or branding strategy.
What works best for your brand and what legal requirements your region may demand will need specific expert advice but the below points will hopefully provide you with some food for thought!
One use case of symbol usage that is often confusing is the example of very large companies such as Google who own many registered trademarks but do not use the symbols to which they are entitled. Or, in other cases, they will use symbols in some cases or channels but not in others. There are restrictions on use in regions where there is not a valid registration. This can cause issues for very large corporations whose products may be available in regions in which they do not have a valid trademark registration. In these cases, companies may elect not to use symbols alongside their trademarks.
In some cases and regions, electing to not utilise the symbols to which you are entitled can have an impact on potential actions for infringement and perhaps limit the damages to which you might be otherwise entitled to claim.

Your Trademark Registration Journey

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What is the difference between TM and SM?

2007/// Filed in: Trademark Law
TM means "trademark", while SM denotes "service mark". Trademarks are primarily used on products (i.e. goods), while service marks are employed to label services. Both TM and SM can be used prior to registration with the federal trademark office (USPTO). Once a trademark or a service mark is registered, the (R) in a circle is used to indicate that the trademark has been registered. The use of the symbols TM (trademark for goods) and SM (service mark for services) is recommended to claim the rights on unregistered marks that have not been used by others in commerce. 


A Trademark is a brand name, a slogan or a logo. It identifies the services or goods of one person and distinguishes it from those of another. A brand name can be a word or a combination of words. A slogan is a short phrase or a sentence and a logo is a distinctive picture or symbol. They provide a distinctive identity in the market place. When a trade mark has been registered, nobody else can use this trade mark or one that is confusingly similar. If this happens, legal actions may result. Trade Mark is a prerequisite to Brand Building and the journey from Trademark to Brand and Brand Equity is tedious and needs proper blending of resources, mere advertisement does not help. A trade mark not appropriately protected may give rise to legal conflicts and may also restrict a corporate from using the respective mark that signifies its very existence. Khurana & Khurana has quality expertise and knowledge in the field of trade marks. K&K has been advising multiple corporates on their trademark development strategy and has helped them register and enforce Trade Marks worldwide through its strong network alliances.

Filing

In India, the usual time taken by the Trademarks Registry from filing to registration is between 18-24 months for a straight forward application. The Indian Trade Mark Office examines all applications with respect to the (a) filing requirements (b) absolute grounds for refusal or (c) relative grounds over the earlier identical or confusingly similar trademark applications/registrations for the goods or services concerned within 10-12 months. If it is found to be registrable, the examiner will accept the same and forward it for advertisement in the Journal. In case of any objections, the Examiner issues an Examination report and the applicant has to prepare and file a response in 30 days. If the Registrar’s decision is again against the registration of the mark, the Trademark Registry fixes a date of personal hearing. The Applicant is then required to represent his case before the Registrar and satisfy the Registrar regarding acceptability of the proposed mark for registration. In the affirmative, it will be published for the opposition of third parties for 4 months in Official Trademark Journal. Application will be registered within 2-3 months after expiry of period of filing notice of opposition, provided that no opposition is received.

Opposition

Any interested party may oppose a trademark application during the four months period of its publication. In case there is an opposition to the proposed mark, the Registrar gives notice of such opposition to the Applicant. On receipt of such notice, the Applicant is required to submit to the registrar, a counter statement of the grounds in support of his application. The registrar will call both the parties for hearing and listen to their arguments before announcing his decision.

Filing Requirements:

  • Full name, Address, Nationality of the Applicant.
  • Description of the Trade/Service Mark.
  • In case the mark is stylized/logo, graphical representation of the mark.
  • A Power of Attorney signed by the Applicant or an authorized person of the Applicant, in original. The same can be submitted subsequent to Filing as well.
  • Goods or Services to be covered under the mark.
  • If the mark has been in use, the exact date since when the mark has been in use.

Renewal

Registration of a Trademark under Indian Trade Marks Act 1999 is valid for a period of ten years but can be renewed from time to time. An application for renewal can be filed not more than six months before the expiration of the last registration of the Trade Mark. If the application for renewal is not filed after receiving notice from the Registrar on this behalf, the mark may be removed from the Register. Subject to the discretion of the Registrar, the mark may be renewed within one year from the expiration of last registration.

What is a trademark?

A trademark is a symbol or word that characterizes your product or service and distinguishes it from other products or services on the market. It makes your customers recognize your product or service.
You probably know of many trademarks that you buy products from just because you recognize them.

Exclusive rights

Your trademark registration gives an exclusive right: no one else has the right to use the trademark for their products or services, or in their marketing.

The difference between trademarks and company names

  • A trademark characterizes goods and services, and is registered through PRV.
  • A company name is the name of a business that is registered by The Swedish Companies Registration Office.

Different types of trademark

It is important to think about how your company should be represented to be perceived the way you would like: with a word, a figure or a sound? Read more about the different types of trademarks here.

Word mark

A word mark consists of one or more words, for example Japp or Marco Polo. It can also be combinations of numbers or letters, like SVT or 3RT.
The word mark is always registered in a standard font. This means that if you want to protect a word in a specific font, you have to apply for a figurative mark.

Figurative mark/logotype

Figurative marks are the trademarks that consists of just a figure or a figure combined with one or more words. Words in a specific font are also considered figurative. Figurative marks can be registered in black and white or in colour.

Three-dimensional mark

If the product itself or the product’s packaging have a special shape, for example a perfume bottle or a liqueur bottle, you may be able to register it as a three-dimensional mark. The shape has to be significantly different from what is known on the market for a three-dimensional mark to be registered.

Sound mark

A sound can be a trademark and can therefore also be registered. A sound mark is a sound or a melody with a distinct recognition effect. A well-known sound mark is the melody owned by Hemglass. When applying for a sound mark the mark can be represented by a sound file or by an exact description of the sound in notation.

Motion mark

A mark where parts of the trademark are shifting, changing or moving. One example of a motion mark is an animated logotype. When applying for a motion mark the mark can be represented either by a video file or a series of still images that show the motion.

Multimedia mark

A mark that consists of a combination of sound and picture. The mark can be represented by an audio-visual file that shows the combination of sound and picture.

Hologram mark

A mark where a three-dimensional picture is shown using holographic technique, for example a rotating logotype. When applying for a hologram mark the mark can be represented by a video file or a series of still images that show the variation of the hologram and the holographic effects.

Position mark

A position mark consists of a specific placement of a trademark on a product. A position mark can be represented by an image that shows how the mark is positioned and what size and proportion it has compared to the product it is placed on. The parts that are not included in the exclusive right should be separated from the trademark in the representation, for example by dashed or unbroken lines. 

Pattern mark

A continuous pattern can be protected as a pattern mark. It can be represented by an image that shows the pattern and how it is repeated. The applicant can also attach a description of how the pattern is repeated, along with the representation.