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What is the proper way to use the ®, TM, and SM symbols for marks?

Most of us understand that the symbols TM and ® are associated with trademarks; however, many do not understand the difference between TM and ®, how to use these properly, and the consequences for failing to do so. Furthermore, many people are unaware of the SM symbol. Here we discuss these three symbols, their significance, and proper use.

® – Registered

The ® symbol is used in the United States (and in many foreign jurisdictions) as an indicator that a mark has been "registered" with the national principal registering office or agency. In the United States the ® symbol is an indicator that a mark has been registered with the U.S. Patent and Trademark Office to be used in conjunction with certain goods or services. Until a mark has been registered, the application is "pending" and the TM or SM symbol should be used instead. A mark holder should not use the ® symbol until the mark is actually registered, because intentionally doing so may be considered fraud and/or false advertising. A mark holder should generally always use the ® symbol after the mark is registered because failing to do so can limit the recovery of damages from trademark infringement to only those damages that occurred after the defendant had actual notice of the registration.

TM – Trademark

The TM symbol stands for "trademark" and may (and should) be used when you are using a mark for goods (as opposed to services) but the mark has not yet federally registered. No filing or application is required to use the TM symbol—as long as you are using a mark for the provision of certain goods, then you can use the TM symbol to put others on notice that you claim state trademark rights in the mark with respect to those goods. State trademark rights are available in every state in the U.S. and are acquired by use of the mark in that state in conjunction with the provision of those goods. If you have filed an application for a federal registration of the mark for the provision of goods, but the application has not yet registered, you should continue to use the TM symbol until the mark registers. If the mark never registers federally, you can generally continue to use the TM symbol, but not the ® symbol.

SM – Service Mark

The SM symbol stands for "service mark" and may (and should) be used when you are using a mark for services (as opposed to goods) but the mark has not yet federally registered. No filing or application is required to use the SM symbol—as long as you are using a mark for the provision of certain services, then you can use the SM symbol to put others on notice that you claim state service mark rights in the mark with respect to those services. State service mark rights are available in every state in the U.S. and are acquired by use of the mark in that state in conjunction with the provision of those services. If you have filed an application for a federal registration of the mark for the provision of services, but the application has not yet registered, you should continue to use the SM symbol until the mark registers. If the mark never registers federally, you can generally continue to use the SM symbol, but not the ® symbol.