What the Trademark Symbol Tells Trademark Searchers

Trademark owners earn the right to use the circle “R” registration trademark symbol, yet too many trademark owners neglect to use this important symbol. Some may decide not to use it because in their opinion it does not fit with the overall design of the composite mark. But so much information is being conveyed in the trademark symbol that it is a mistake not to use it and can result in unintended consequences in the event the trademark owner is forced to enforce its rights.

Trademark designations come in two varieties. The first variety is reserved for common law trademarks. The designation reserved for common law trademark rights is “TM” and the designation reserved for common law service mark rights is “SM.” The second variety is reserved for federally registered trademarks, whether the trademarks or service marks are registered on the Principal or Supplemental Registers.

Regardless of the trademark symbol being used, they all serve the same purpose. That purpose is to put others on actual notice of your trademark or service mark rights. But it is not a requirement that you use a trademark symbol. And that is precisely why as a trademark searcher you should pay attention to marks you uncover in your search that display a trademark symbol. For the most part, trademark owners using a trademark symbol are serious trademark owners, which means they are likely policing the marketplace for confusingly similar marks. If they have not federally registered their mark, the level of seriousness drops. Nevertheless, these are trademark owners that could present a problem to your proposed mark.

As a trademark owner who has earned the right to use the circle “R” trademark symbol, if you do not want benefit from the deterrent effect the symbol can have, then you should want to use it for the following reason. According to the Trademark Act:

In any suit for infringement . . . by such a registrant failing to give such notice of registration, no profits and no damages shall be recovered under the provisions of this chapter unless the defendant had actual notice of the registration.

You earned the right to use the registered trademark symbol, so do not miss out on a remedy for not using it.

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