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Demystifying Trademark Symbol Usage

—Daniel M. Levine

Have you ever waded through a trademark soup of symbols, letters, and circles on a webpage or in print? Why are all those little notations needed? What do they all mean? This article will help you cut through the confusion and start using trademark notations like a pro.

WHY USE TRADEMARK SYMBOLS?
Even though a trademark denotation is not required, using one helps potential consumers of your brand associate your products and services with the trademark. It also puts competitors on notice you are using (or intending to use) the mark.

WHICH SYMBOL TO USE-® or ™?
The ® and ™ are the two symbols most used in connection with trademarks. The ® can only be used for trademarks with a registration certificate from the Federal Trademark Office. This requires formally applying for a trademark with the federal government. Marks that have been applied for but not granted registration cannot use the ® symbol.

Conversely, the ™ symbol is simply used to denote any word, phrase, or design used (or intended to be used) as a trademark. The ™ symbol is appropriate for ALL trademarks-registered, not registered, and those intending to be used. Even using a ™ with a registered mark is not incorrect.

WHICH SYMBOLS NOT TO USE-SM and ©
“SM,” or ‘service mark,’ is used in connection with trademarks for services (as opposed to those for goods). It has greatly fallen out of favor and a ™ can always be used in its place.

The © is a copyright notation sometimes mistaken as one for trademarks. While it is true a trademark design may be copywritten, a © should never be used by itself to denote a trademark.

WHERE TO PLACE TRADEMARK SYMBOLS
Traditionally, both ® and ™ symbols are placed to the upper right of the trademark (e.g. ‘superscripted’). The symbol comes after the last literal element. For example:

Correct: XYZ LEGAL™ or XYZ LEGAL®

Incorrect: XYZ ™ LEGAL or XYZ® LEGAL

For trademarks with design elements the symbol is also placed to the right of the mark but its height is flexible due to aesthetic concerns.

A combination of trademarks can use one trademark symbol placed to the right, similar to a design mark, is a good alternative for serving the notice function mentioned above without marring the trademark’s look. However, if all the individual trademarks are not registered be sure to use a ™.

HOW TO HELP DENOTE TRADEMARKS WITH OR WITHOUT SYMBOLS
In addition to using trademark symbols the manner in which a trademark appears can also help define and set them apart from other elements on a webpage, on a product or package, or in advertisement. Such techniques can include denoting a trademark with a different font size or color. Another popular option is to use the mark in a stylized font, such as bolding. One more way is to physically separate the trademark from other text or design elements.

TRADEMARK TIPS
Below are a few points to remember when using trademarks and trademark symbols.

• Registered trademarks are only registered for the goods or services listed in the registration certificate. So, for example, if XYZ were registered for toothbrushes it would be incorrect to use XYZ® on clothing (even though XYZ™ for clothing would still be appropriate).
• Once a trademark has been granted a registration certificate it must be used in its entirety to be valid trademark use. For example, if XYZ TOOTHBRUSHES® were registered for toothbrushes it would be incorrect to use XYZ® on the toothbrushes.
• Even though the entirety of a trademark must use additional elements may also be added. For example, if XYZ TOOTHBRUSHES® were registered for toothbrushes it would be correct to imprint a drawing of a tooth and then XYZ TOOTHBRUSHES®.

The information in this article is for informational purposes only and does not constitute formal, legal advice.  Consult with one of the attorneys from Roberts McGivney Zagotta LLC for advice about your particular circumstance