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Using trade mark symbols

Symbols or notations next to trade marks are an easy and cost effective way of informing the public that the trade mark in question has a claimed legal ownership. Notations can also be used to signify that a trade mark is registered or indeed unregistered.

This guide is based on UK law. It was last updated in July 2018.

The general principles for use of trade mark notations are:

®: The symbol ® is a notice of registered ownership used in many countries or regions to advise the public that a trade mark is registered and to provide constructive notice of the legal ownership status of the mark with which it is used. The notation {brand}® should only be applied once the trade mark is registered in any relevant country.

™: The symbol TM is used to provide notice of a claim of common-law (unregistered) rights in a trade mark. If the mark is the subject of a pending trade mark application or is simply used without corresponding registration or pending application, you should adopt the notation {brand}™ only. Use of the notation does however not guarantee that the owner’s mark will be protected under the trade mark law of the particular country where the notation is being used.

SM: Basically the same as the notation {brand}™, but used solely in connection with services as opposed to tangible products. More common in North America than in other regions.

There are no legal requirements to use the ® notation in materials relating to registered trade marks, but there are benefits to doing so, listed below. Use of the notation when the mark is still unregistered may, however, result in claims of misleading consumers or may even constitute, for example in the UK, a criminal offence.

Use of {brand}® has two general benefits: 

  • it is effective “notice” to third parties of your established legal rights, and;
  • it can act as a deterrent to third parties adopting identical or similar names/signs.

The position relating to use of ® in the US

Whilst there is no legal requirement to use the ® notation, US law gives registered trade mark owners an entitlement to seek an award of damages.

In any enforcement action, a registered trade mark owner is not entitled to an award of damages or profits unless the infringer had actual knowledge of the registration. In order to avoid any infringer succeeding in a “good faith and innocent infringement” defence to avoid the issuance of damages and/or an account of profits within any judgement, it is advisable to always use the ® notation in US materials, provided, of course, that the mark is registered in the US.

Summary

As a general principle, materials should adopt the correct notation for all trade marks you consider to be owned by your business.

Pinsent Masons’ trade mark team has significant experience in advising clients regarding the domestic and international use and protection of their trade marks. Should you have any questions, please do not hesitate to get in touch with the team.