TM versus R - what’s the difference and why does it matter?
Confusion around various elements of trademarks abound. Queries such as whether you can use a particular mark and whether you need to file an application to register a trademark are common. One area of confusion lies around the TM and R symbols, what they represent and why and when you should use them.
What’s the difference between TM and R?
As always, there are regional differences in legislation and practice on which specific advice should be sought. However, there are some generalities across most regions which can provide some basic information.
The TM symbol can generally be used by any person or business to indicate that a particular word, phrase or logo is intended to serve as an identifier for the source of that product or service. You do not have to have registered a trademark to use it and many companies will opt to use the TM symbol for new goods or services in advance of and during the application process.
The R symbol indicates that this word, phrase or logo is a registered trademark for the product or service. It must only be used in the case of registered trademarks and by the owner or licensee. It also must only be used in the regions in which you possess a valid trademark registration.
Why does it matter?
I have said it before but it is worth saying again - the area of trademark law is an immensely complex one with little things that you do or don’t do having a critical impact if things go wrong….and they do with appalling regularity. It is without doubt worth a small investment to discuss your particular circumstances with a trademark attorney. The below should not be treated as an exhaustive list of considerations but rather as a small group of illustrations as to why that advice may be required:
Online you may see many discussions which tend towards thinking that the use of such symbols is irrelevant (and indeed the registration of a trademark at all) and has no impact on the level of protection you enjoy. Perhaps that it is true in some regions but not in all.
In the first instance, where you are using a word, phrase or logo as a trademark intending it to identify you or your company as the source of products or services, you have the option in many countries to do this without applying to register a trademark - known as ‘common law’ use. In ‘common law’ regions, you do absolutely enjoy some protections but those are not equal to the protections that you would enjoy as the owner of a registered trademark.
Use of the TM symbol in cases where you don’t wish to or cannot obtain a registration can be a strategic decision. For example, where your mark or brand is not registrable due to descriptiveness, consistent use of the brand can eventually lead you to acquire distinctiveness which might permit registration. In this case, using the TM symbol alongside the brand over a period of time potentially allows you to illustrate that you have been using this brand as a trademark over an extended period of time and it has become recognisable in the marketplace as serving as a distinct identifier for your business.
Use of the TM symbol in the case of unregistered marks can also signify to the public at large (and potential infringers) that you have the legalities of protecting your brand in mind. This may serve, in some cases, to act as a deterrent to infringement. It should also be borne in mind, that in the creation of a brand, you are creating an intangible but material asset of your company. For potential investors, this can be a critical factor in the decision making process. While an unregistered brand name may have some value, it is not comparable with the asset potential of a registered brand.
Why is there so much variation in how different companies use the different trademark symbols?
There is no single right or wrong approach. There are myriad considerations to bear in mind with each choice to use an appropriate symbol or not. Or indeed to use it selectively in various ways through different channels and media. Some of these considerations have legal implications and others will form part of your marketing or branding strategy.
What works best for your brand and what legal requirements your region may demand will need specific expert advice but the below points will hopefully provide you with some food for thought!
One use case of symbol usage that is often confusing is the example of very large companies such as Google who own many registered trademarks but do not use the symbols to which they are entitled. Or, in other cases, they will use symbols in some cases or channels but not in others. There are restrictions on use in regions where there is not a valid registration. This can cause issues for very large corporations whose products may be available in regions in which they do not have a valid trademark registration. In these cases, companies may elect not to use symbols alongside their trademarks.
In some cases and regions, electing to not utilise the symbols to which you are entitled can have an impact on potential actions for infringement and perhaps limit the damages to which you might be otherwise entitled to claim.
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