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.

For help or questions with trademarks, feel free to contact us, or read our other articles on trademarks. We’re here to help.

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.

Law 4 Small Business, P.C. (L4SB). A little law now can save a lot later. A Slingshot company.


    1. This is meant to be common knowledge. The author is just being a good Samaritan and writing this article for us laymen who didn’t know the difference before. 🙂 If it hadn’t been stated here, I’m certain this information would be readily available elsewhere on the internet.

      1. And as I finish posting that last reply, I realize I’m replying to a five-year-old comment. Whoops, probably not the best use of my time! Haha

  1. Hi, I am in Australia, and was looking to use the name, Hard Core, a google search bought up this – Hard Core®, does that mean the actual name is registered and cannot be used or is it the product is registered

    1. Hi, Lee-Ann.

      That’s a great question and somewhat complicated. We do have a “trademark assessment” service for I think $349, that you can order by going to https://www.l4sb.com/trademark-assessment/. With that said, here are the issues: First, I’m not sure where “Hard Core” is registered. Assuming it’s registered in the United States, you can look up its trademark listing at the USPTO, which is located at http://www.uspto.gov/. The reason you want to look up its listing, is that you want to look at its “class code” and description to see if it’s the same line of commerce as you. If so, then your use of the same mark would be restricted in the United States. However, if your use of the mark is different from the one registered, then you would theoretically (there are some exceptions to this general rule) be permitted to use the same mark in the US.

      Second, are you planning on using your mark just in AU versus the US? If so, I would recommend registering your mark in the AU. Most countries are “first to file” versus “first to use” as in the US, but I really don’t know what AU’s policy is without looking it up. If Hard Core is not registered in the AU, your first registration would give you leverage at the very least, if Hard Core does eventually want to use the mark in the AU.

      If you have any other questions, please do not hesitate to contact us!

      Thank you! Larry.

  2. Hi Larry,

    Really helpful article and comments.

    Following on from Lee-Ann’s comments…

    Supposing Hard Core was setup as an internet shop, would this mean the AU company wouldn’t be able to sell to somebody in the US? Would this potentially break the ‘R’ rights of the US Hard Core company?


    1. Hi, Paul.

      This is actually a complicated issue, depending on what you mean by “sell to somebody in the US.” If you mean, to ship products into the US whose markings infringe a valid US-based trademark (whether that US-based trademark is owned by a US company or foreign company), then you’re going to have some trouble. First, the company owning the US-based trademark can frustrate your efforts to sell in the US by preventing Google and other advertisers from promoting your “infringing mark” here in the US. Second, companies owning valid US-registered trademarks have the right to request US Customs officials to seize infringing products, thereby frustrating your efforts (and increasing your costs) in trying to sell your products to someone in the US.

      I don’t see how any sort of infringing activity can “break the trademark rights” of any trademark holder, except in the following way: The infringing activity becomes so widespread, that the trademark becomes descriptive. Furthermore, if the trademark holder stop enforcing its trademark rights, such that infringing activity becomes widespread, they could lose the ability to enforce it.

      Good luck to you. Larry.

    2. Hello could i use the word “Vivint” in my business name such as “vivint automotive detail” if the word “Vivint” has a “enclosed R” beside it?

      1. You really should consult with a TM attorney to assess this for you. The quick answer depends on a few things. For starters, when you say “if the word ‘Vivint’ has a “enclosed R” beside it, are you saying that someone else is using the word with the (R) symbol? If so, then it means it’s a registered trademark, and you need to be very careful. The test for “trademark infringement” is “likelihood of confusion,” which has a number of tests, including similarity of the marks, trade channels, products or services, etc. This is where you need professional advice.

        If you’re saying you want to use the word with the (R) symbol, then the answer is “don’t do that,” unless you have an actual registered trademark.

  3. Hey Larry, so just to clarify, if a product has the (R) symbol, such as the Toroflux, would it be illegal for me to copy that design and use it for a different purpose?

    1. Hi, Christian.

      It’s generally a bad idea to copy anyone else’s design for a number of reasons. In this particular situation, when you say “if a product has the (R) symbol” . . . I don’t mean to split hairs, but words are everything. A “product” doesn’t have a (R) symbol, a trademark does. A trademark can be a “word mark” or a “design mark,” such as a logo.

      In the context of your question, you’re asking whether you can copy it and use it elsewhere, which implies you’re referring to a “design mark.” First, does Toroflux even has a trademark on its logo? By copying it and using it elsewhere, could you still create a “likelihood of confusion?” Is it possible their logo or design (or whatever you’re considering copying) is protected in some other ways, such as copyright?

      Copyright is another area of law that can protect expressions, such as drawings, line-art, photos, etc, and protection is automatic even without registration. Registering a copyright confers additional benefits, including but not limited to statutory damages and ability to bring an infringement lawsuit.

      Therefore, I cannot recommend you copy the design for a number of reasons, including but not limited to the strong possibility you’d be violating their copyright if we’re talking about a design or logo of some sort.

  4. What does a small r then next to it the word sterling mean . The small r looks like it has been stamped in a square then right after is the word sterling but the small r then ster then ling under the ster spelling out sterling . Not sure what this stamp means , hope you can help . Thanks

    1. 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).

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