Understand When to Use “TM”, “SM”, and “(R)” to Protect Your IP
A “trademark” is a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of another. On the other hand, a “service mark” identifies and distinguishes the source of a service rather than goods. Though clearly different concepts, the term “trademark” is frequently used to refer to both trademarks and service marks, and legally there is no difference.
Federal registration of trademarks provides important benefits and legal protections. However, trademark ownership is actually determined by first use of the mark in a commercial setting. So, by using a word, phrase, symbol or design to identify goods or services in the commercial marketplace, a trademark has been created. After trademark ownership has been established, the owner of the trademark can begin to utilize the “TM” (trademark) and/or “SM” (service mark) insignia with their trademark. Anyone who claims rights to use a mark may use the TM or SM designation to alert the public to your claim of ownership of the mark. This does not require a formal application with the United States Patent and Trademark Office (“USPTO”).
However, to obtain federal protection under the trademark statutes and rules, you must register your trademark with the USPTO. After the USPTO actually registers a mark, you may begin using the federal registration symbol, “(R)”.
The USPTO explains that owning a federal trademark registration provides several advantages:
-Public notice of your claim of ownership of the mark;
-A legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration;
-The ability to bring an action concerning the mark in federal court;
-The use of the U.S. registration as a basis to obtain registration in foreign countries;
-The ability to record the U.S. registration with the U.S. Customs and Border Protection (“CBP”) Service to prevent importation of infringing foreign goods;
-The right to use the federal registration symbol “(R)”; and
-Listing in the USPTO online databases.
While some people can handle their own trademark applications without attorneys, the Trademark Electronic Application System (“TEAS”) can be complex and difficult to use. Furthermore, if the mark you are planning to register is unusual, or for some reason the USPTO does not want to accept your application, you will need to consult an attorney.
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