™ vs ®: What Is the Difference and Why Does It Matter?

By Victoria Walker, Esq.

Walk through any business district, scroll through any professional's LinkedIn profile, or browse any e-commerce store, and you will see these two symbols. They are not interchangeable. They represent fundamentally different legal positions, and understanding the difference between them is one of the most practical things a scaling founder can do to assess the real state of their brand protection.

The ™ symbol and the ® symbol both signal a claim of trademark rights. That is where the similarity ends.

The ™ Symbol: What It Means and What It Does Not

The ™ symbol, the trademark symbol, is an unregistered trademark notice. Any person or business can use it at any time, for any mark, without any application, approval, or registration. There is no government body that must approve your use of ™. There is no filing required. There is no legal threshold you must meet before placing it next to your brand name.

Using ™ signals to the marketplace that you are claiming trademark rights in the mark. It puts others on informal notice that you consider the mark to be yours. It may, in some circumstances, strengthen your common law trademark claim by demonstrating your intent to claim rights.

What ™ does not do is give you federal trademark protection. It does not give you the legal presumption of ownership. It does not give you exclusive nationwide rights. It does not give you access to federal courts or the enhanced remedies available to registered trademark holders. It does not allow you to record your mark with U.S. Customs. And it does not prevent someone else from filing a federal trademark application for the same mark and obtaining rights that are superior to yours.

Anyone can use ™. It costs nothing. It requires nothing. And in a federal trademark dispute, it provides very little.

The ® Symbol: What It Means and What It Requires

The ® symbol, the registered trademark symbol, is a federal registration notice. It may only be used in connection with a mark that has been successfully registered with the United States Patent and Trademark Office. Using ® on an unregistered mark is not only legally incorrect, it can constitute fraud on the USPTO and expose the user to civil liability.

Earning the right to use ® requires completing the federal trademark registration process: filing an application, surviving examination by a USPTO examining attorney, surviving a 30-day publication period during which third parties may oppose the application, and receiving a certificate of registration. That process takes time, typically between eight and fourteen months for a straightforward application, but the rights it confers are substantially more powerful than anything ™ can provide.

A federally registered trademark gives the owner a legal presumption of exclusive nationwide rights to use the mark in connection with the registered goods or services. It gives the owner the ability to bring an infringement action in federal court. It entitles the owner to statutory damages and, in cases of willful infringement, enhanced damages and attorney fees. After five years of continuous use, a registered trademark can become incontestable, which significantly strengthens the owner's position in any future dispute.

The Five Rights You Gain With ® That ™ Cannot Provide

• Nationwide priority. Your rights extend across the entire United States from the date of your application, not merely the geographic area where you have operated.

• Legal presumption of ownership. In any dispute, the other party must prove you do not own the mark, not the other way around.

• Access to federal courts. Trademark infringement claims can be brought in federal district court, with access to a broader range of remedies than state court litigation.

• Customs recordation. You can record your registered trademark with U.S. Customs and Border Protection, which enables customs officials to seize infringing imports at the border.

• Incontestability after five years. Once a mark has been registered and in continuous use for five years, the owner can file a declaration of incontestability, which forecloses certain challenges to the validity of the registration.

The ℠ Symbol: A Brief Note

There is a third symbol worth mentioning: ℠, the service mark symbol. It functions identically to ™ but is used specifically for services rather than goods. Like ™, it indicates an unregistered claim of rights and provides no federal protection. It is used in practice far less frequently than ™, and the legal analysis is the same.

The Practical Implication for Your Brand

If your brand currently carries ™ and you have not filed a federal trademark application, you are in a position of legal uncertainty. You may have common law rights in the geographic area where you have been operating. You do not have federal rights. You are not the ® owner of your brand, and someone who files before you and obtains federal registration will have rights that are superior to yours in the areas where your common law use does not extend.

The transition from ™ to ® is not automatic. It requires a deliberate filing and the successful navigation of the USPTO registration process. For many founders, the right time to make that transition was earlier than they made it. The second best time is now.

A note on international use: in many jurisdictions outside the United States, the use of ® on an unregistered mark is prohibited by law and can result in fines or other penalties. If your business operates internationally or targets international markets, ensuring that your use of trademark symbols is accurate and jurisdiction-appropriate is an additional reason to work with a trademark attorney.

READY TO PROTECT YOUR BRAND?  

Book a free consultation with Victoria Walker, Esq. and find out exactly where your brand stands and what it will take to make sure no one can ever take it from you. Visit victoriavwalker.com to schedule.

DISCLAIMER  

This article is for informational purposes only and does not constitute legal advice. Reading this post does not create an attorney-client relationship between you and Victoria Walker, Esq. or any affiliated entity. Trademark law is complex and fact-specific — the information provided here is general in nature and may not apply to your particular situation. You should consult a qualified trademark attorney before making any decisions regarding your intellectual property. If you would like to discuss your specific circumstances, please book a free consultation using the link below.