TM versus ®: which symbol you may use, and when

The three symbols

Three symbols appear next to brand names in the United States, and they say different things:

TM and SM are informal. No law grants them and no law restricts them; they announce that you treat the name as a brand and would object to a copy. ® is different in kind: it is the statutory notice of federal registration described in Section 29 of the Trademark Act, and the law attaches consequences to it, both for using it correctly and for using it wrongly.

The glossary has the one-line version, and the USPTO's trademark basics pages have the official one.

TM and SM: no registration needed

You may use TM the day you choose a name. It does not require an application, a state filing or a lawyer, and it does not change your legal rights: those come from actually using the mark in trade, and from registering it. What TM does is put competitors on notice that you consider the name yours, which discourages casual copying and helps show that you treated the name as a brand rather than a description.

SM is the version for services: a consultancy, a restaurant, a software subscription, a cleaning company. Many service businesses use TM anyway; nothing turns on the choice, so use whichever fits and be consistent.

TM stays correct throughout an application. When Acmeflow files and waits the year or more it takes to register, its website says Acmeflow TM the whole time, through examination, publication and any notice of allowance. The switch to ® happens on one day: the day the registration certificate issues.

®: only after federal registration

The ® symbol means one thing: this mark is registered with the United States Patent and Trademark Office. You may use it once the USPTO has issued the registration, on either the Principal or the Supplemental Register, and only in connection with the goods and services the registration covers. If Northwind Outfitters registers its name for jackets and later launches a line of tents under the same name, the tents get TM until a registration covers them.

Four situations do not qualify, and each is a common mistake:

• A pending application, even after it has been published or a notice of allowance has issued. Until the certificate exists, the mark is not registered.
• A state trademark registration. States register marks too, but ® is federal notice; a state registration supports TM, not ®.
• A registration in another country. A mark registered abroad but not in the United States should not carry ® in U.S. marketing.
• Goods or services outside the registration. The symbol travels with the registered goods, not with the company.

The long forms, "Registered in U.S. Patent and Trademark Office" and "Reg. U.S. Pat. & Tm. Off.", mean the same thing and are still valid, though almost nobody uses them.

Why the notice matters: under Section 29, a registrant who does not give notice of registration cannot recover profits or damages in an infringement suit unless the defendant had actual notice of the registration. Using ® consistently means every copier is on notice from the day they see your mark. That is a real, practical benefit of registration, and the protection FAQ covers what else registration lets you do.

What misuse can cost

Using ® before registration is unlawful, and the consequences scale with intent. Deliberate use of the symbol to deceive the public into thinking a mark is registered is treated as fraud, and fraud can be a ground for refusing an application or cancelling a registration. An honest mistake, such as a designer adding ® to a logo because it looked finished, is not fraud, but it is not free either:

• The examining attorney may notice ® on your specimen for a mark that is not registered and ask you to explain it before the application moves on. The usual fix is a statement that the use was inadvertent and has been corrected, plus a new specimen.
• A competitor in a dispute will point to the misuse. Courts have sometimes refused to help trademark owners who came to court with unclean hands, and a false claim of registration is a favorite example.
• A false claim of registration can also be treated as a deceptive trade practice under state consumer-protection law, which opens a separate line of complaint.

The correction is simple: remove the symbol everywhere it appears, replace it with TM, and keep a record of when you did so. If you are not sure whether a mark you inherited was ever registered, its status is a two-minute check; what each USPTO trademark status means shows how.

The symbol also has an end date. If a registration is cancelled for a missed maintenance filing or expires without renewal, ® must come off. Trademark maintenance and renewal has the deadlines.

Where to place the symbol

No statute dictates the position or size of any of the three symbols. Convention, and the way courts have read "notice", suggest the following:

• Put it at the upper right of the mark, as a superscript, or at the lower right as a subscript. Upper right is the more common choice for word marks; lower right often sits better beside a logo.
• Use it on the first or most prominent appearance of the mark on a page, a label or a package. Every mention does not need it; a headline or a logo with the symbol gives notice for the whole piece.
• Keep it legible. A symbol that cannot be read is not notice. On packaging and signs, size it so a customer at reading distance can see it.
• Match the symbol to the registration. If Hazel & Rye has registered the words in standard characters but not its logo, the words get ® and the logo gets TM until the logo is registered. Word mark versus logo versus icon mark explains why the two are separate marks.
• Use it in the places where infringers look: the website header and footer, product pages, packaging, the app listing, and the social profile name or bio.

From TM to ®

1. Choose a name you can own and run it through the free check. A distinctive name that screens clear can carry TM today and ® later.
2. File the application, on use in commerce if you are already selling or on intent to use if you are not. From the filing date, your place in line is fixed.
3. Keep TM in place through examination, any office action, publication and, for intent-to-use filings, the Statement of Use. How long a trademark takes sets expectations.
4. On the day the certificate issues, switch to ® wherever the registered goods and services appear, and calendar the maintenance deadlines.

The symbol is the easy part. Whether the name itself can be registered is what the check answers. Check my trademark for free

Questions about this topic

Can I use ® once my application has been published or allowed?

No. Publication and a notice of allowance are steps toward registration, not registration. The ® symbol may be used only after the USPTO issues the registration certificate. Until then the correct symbol is TM for goods or SM for services, and using ® early can prompt questions from the examining attorney.

My mark is registered in another country. Can I use ® in the United States?

Not on the strength of the foreign registration alone. The ® symbol in U.S. commerce is notice of a United States registration. Use TM or SM in your U.S. marketing until the USPTO registers the mark; a foreign registration can help you file here, but it does not substitute for a U.S. registration.

Do I have to use the ® symbol once my mark is registered?

No law requires it, but there is a good reason to. Under the Trademark Act, a registrant who does not give notice of registration cannot recover profits or damages from an infringer who lacked actual notice of the registration. Using ® consistently on prominent uses removes that argument.

Related guides

• Does a small business need a trademark?: What federal registration adds to the rights a small business already has, when filing becomes urgent, what a trademark does not do, and what it costs.
• Intent to use vs use in commerce: choosing your filing basis: Section 1(a) vs 1(b): what use in commerce means, when to file before launch, the Notice of Allowance, and Statement of Use fees and extensions.
• Trademark maintenance and renewal: keeping your registration alive: The Section 8, 9 and 15 filings that keep a U.S. trademark registration alive: when they are due, what the USPTO charges, grace periods and audits.

Contact

Trademarky, LLC, 78 SW 7th St, 5th FL, Miami, FL 33130. (305) 562-6800, hello@trademarky.io. Monday to Friday, 9am to 5pm ET. Available by appointment.

This free check is an AI-assisted preliminary screening against known U.S. trademark records. It is not a comprehensive clearance search and not legal advice. Only a licensed attorney can advise you on whether to file.