When looking at different brand names or logos, it is common to see some type of trademark symbol right next to it. Those trademark symbols are either the circled R (®), a superscript TM, or a superscript SM.
What you use and how you use it matters. If you have received a federal trademark registration, the ® trademark symbol is the one that you should be using. Using the ® before you receive a registration, however, violates federal law and could lead to the denial of your application. The Federal Circuit has held that “the improper use of a registration notice in connection with an unregistered mark, if done with intent to deceive the purchasing public or others in the trade into believing that the mark is registered, is a ground for denying the registration of an otherwise registrable mark.” Copeplands’ Enterprises Inc. v. CNV Inc., 945 F.2d 1563, 20 USPQ2d 1295 (Fed. Cir. 1991).
If you do not have a registered trademark, you should instead be using either the TM or SM trademark symbols. These trademark symbols do not require a registration (nor do you need to apply for one). If you are selling goods, then TM is the proper trademark symbol to use when identifying your brand. When selling services, however, it is best to use SM which stands for service mark.
With that said, most of the time people refer to trademarks and service marks interchangeably and you don’t see the SM symbol very often.
Why use a trademark symbol?
The purpose of a trademark symbol, regardless of which one you use, is to notify the public and your competitors that you are claiming trademark rights to the name, slogan or logo. One of the goals here is to make a third party think twice before they go ahead and use something identical or similar. When you have a federal trademark registration, failure to use the ® symbol may indicate that there is no notice of registration to a potential infringer. This can limit the profits and/or damages you can recover in an infringement lawsuit unless the infringer had actual notice of the registration.
