Business Law Blog

What Is a Trademark Symbol and When Should I Use One?

Posted by Amanda Butler Schley | Dec 06, 2021

Every entrepreneur wants a way for potential customers to quickly identify their business, whether it be a word, phrase, symbol, or logo, also known as a trademark. Once the complicated process of registering a trademark is complete, a new area of confusion commonly arises. When and how should a trademark symbol be used?

What Is a Trademark Symbol?

A trademark symbol is a symbol that is used to indicate that the preceding mark is a trademark. There are several forms of trademark symbol, including TM, SM, or ®. This mark helps to inform others that if they infringe on the trademark, they could face legal consequences.

What Do the Different Trademark Symbols Mean?

Here's a breakdown of the three different trademark symbols and what each one indicates:

  1. ™ symbol: This symbol can be used on trademarks that are unregistered but are considered common law marks that indicate either a product or a service. It can also be used when a registration for a trademark is pending.
  2. SM symbol: Another symbol used for common law trademarks, the SM symbol is used for trademarks that indicate a service. It's not as frequently used as the ™ symbol.
  3. ® symbol: Only when a trademark is officially registered with the United States Patent and Trademark Office (USPTO), the ® symbol can be used. This is a federally registered trademark symbol, covering both products and services.

What Is a Common Law Trademark?

A common law trademark is an unregistered trademark that can still provide protection for a company's recognized symbol.

Common law trademark rights typically begin when a company begins to use a specific mark in a specific geographic area. As long as the company continues to use this mark, others in the geographic area cannot infringe upon it. However, trademark protection nationally is not provided.

For example, if a pet store opened in Lafayette, Louisiana named “Pets Plus & More” and the owners were the first to use this store name, new pet stores in the area could not open using the same name. However, this doesn't necessarily prevent new pet stores opening in other states under the same name but different ownership.

As noted above, the ™ symbol or SM symbol can and often should be used to indicate that a mark is considered a company's trademark.

How Can I Protect My Trademark on a National Level?

Registering with the USPTO is the only way to obtain national recognition of a trademark.

Is a Trademark Symbol Required by Law?

No, trademark symbols are not required by law.

Where Should a Trademark Symbol Be Placed?

The trademark symbol indicates that a preceding mark is a trademark, so it should always be placed immediately following, or at the end of, the mark. Typically, symbols are placed in the upper right corner of a trademark as a superscript but can also be placed in the lower right corner as a subscipt.

Do I Always Need to Use a Trademark Symbol?

No, it's not always necessary to include the trademark symbol. When someone says that a trademark must be used or the rights to it will be lost, they mean the actual mark itself, not the trademark symbol.

These symbols are most commonly used in commercial writing, such as advertisements, but again, are not necessary.

Protecting Your Trademark

It is always the responsibility of the trademark owner to maintain and police the use of the trademark, even when registered with the USPTO.

What To Do If Someone Uses Your Trademark

If you believe that someone is using your trademark, the first thing you should do is contact an experienced trademark attorney at Business Law Group. Our legal team proudly represents entrepreneurs and we work hard to protect the businesses they own.

Once we determine that trademark infringement is actually taking place, we will discuss how to proceed. Typically, action begins with a cease and desist letter, informing the other party that their use of a trademark is infringing on our client's rights. These letters are frequently effective simply because the person using the trademark was unaware that it already existed.

If the cease and desist letter is ignored, the letter can be used in court to show that our client attempted to negotiate in good with the infringer.

In some cases, a trademark infringement lawsuit needs to be filed. Our legal team will collect the necessary evidence to show the court that:

  1. The trademark in question is being used on competing products or services.
  2. Consumers shopping for those products and services would be confused by the dual use of the trademark.

Successful trademark infringement lawsuits can provide the plaintiff with monetary damages that cover the losses sustained by the plaintiff, such as the loss of sales, a reasonable royalty, and attorneys fees.

If you have any questions about registering a trademark or trademark infringement, don't hesitate to contact our office.

About the Author

Amanda Butler Schley

Ranked as a Top Rated Business and Commercial Attorney, I have more than a decade of experience representing boutique hotels, family-owned businesses, privately owned restaurants, breweries, artists, executives and entrepreneurs.

Who We Are

Business Law Group is a boutique business services law firm in New Orleans, Louisiana. Our focus is on understanding the legal pitfalls of your business and industry, as well as the secrets to maximizing your legal leverage at every opportunity and in every negotiation. We work selectively with clients that aren't ready for the overhead expense of an in-house general counsel, but understand the advantages of having a trusted legal advisor on their team. Amanda Butler has been ranked as a Louisiana SuperLawyer, New Orleans Top Lawyer, Best Lawyers, and in Leaders of Law.