A couple of months ago, I wrote a blog article entitled Trademarks: Delay can cost you, which went into some detail on the intricacies of trademark law. As a trademark attorney and small-business lawyer, I took it for granted that most people know the difference between the (R) symbol and the TM symbol, but later found out that much confusion exists about these symbols and what they mean. In this article, I explain what these two symbols are, and what they mean for you and your trademark.
What is the (R) symbol?
Simply put, the (R) symbol next to a trademark means that the trademark is officially registered with the US Patent & Trademark Office (or USPTO for short). For a simple, arbitrary, non-existing word mark, it can be easy and inexpensive to register your trademark by yourself. Registering your trademark gives you superior rights over anyone else in the United States to use your trademark in the industry classes specified, and it allows you to potentially obtain treble damages against infringers.
The R-symbol means a trademark is registered.
If your trademark is (i) complicated (i.e. a sound mark, diagram, etc), (ii) more descriptive than arbitrary, (iii) being used by others before you, or (iv) not just based on a simple word, registering your trademark can become more complicated and much more expensive. This becomes the territory and domain for good trademark attorneys; and trust me, it’s well worth the investment of a good lawyer to help you through the process of registering your trademark under such circumstances.
What is the TM symbol?
The (TM) symbol is for all other trademarks that are not registered, they must not be associated with the R-symbol. Doing so can evoke penalties from the USPTO if you eventually try to register your trademark, or if you try to defend against potential infringers. Instead, use the TM symbol in place of the R-symbol, until your trademark is registered. It provides notice to would-be infringers that you view your mark as a trademark, and that you will defend it against would-be infringers.
Thinking of Protecting Your Trademark or Business Name?
Trademark law is very complicated, and not choosing the right name can become a costly and time-consuming mistake. Our recommendations when considering (or protecting) a business name, are as follows:
- Know what “likelihood of confusion” means. When you try to determine whether someone else is already using the name you want to use, remember that you’re not just looking for “exact matches.” You’re looking for other marks which could be “confusingly similar” to your mark. We wrote a blog article that helps explain this concept, entitled Likelihood of Confusion — Don’t Be Confused by Trademark Law.
- Pay for a Good Assessment. Once you think you have a good name, you owe it to yourself to pay someone to double-check whether the name is available. The trademark registration fees are not-refundable, and it will take approximately 6-months until you hear back from the USPTO. The average rejection for first-time trademark applicants who do the application themselves is over 80% (Read: Trademark Attys Make A Big Difference, Usually: Study and Do Trademark Lawyers Matter?). This translates to lost fees, and many months investment in a name you may later find out you cannot use. We have a low, flat-rate fee for this service. Learn more.
- Hire an actual Trademark Lawyer, not an Internet company. Not to denigrate some of our competition, but unless you have an actual licensed trademark lawyer working on your trademark, the odds are greater than 80% that your trademark application will be rejected (your time and money wasted). Many law firms and attorneys are cost-competitive with what you can find on the Internet. Again, we have a low, flat-rate fee for Trademark Registration. Make sure whomever you hire and working on your trademark is actually a licensed trademark attorney.
- Don’t delay — if you have a name you like, go for it. The longer you think about it and delay seeking trademark protection, the greater the chances someone else will file before you.