How and why to use the TM & SM symbols on unregistered trademarks

The symbols “TM” and “SM” can be used with an unregistered trademark or service mark to inform the public that a word, design, or slogan is being used as a mark and that the owner of the mark claims rights to it.  Using either of these symbols gives notice that you are intentionally establishing ‘common law trademark rights’ in your mark, before or instead of filing your federal trademark registration with the USPTO.

Figuring out which symbol to use is fairly simple.  If your business deals with goods, like selling t-shirts, then use ‘TM’ for Trademark.   If on the other hand, your business offers a service, like being a personal trainer, then use ‘SM’ for Service Mark.

Placement of the TM and SM symbols is something that you have probably seen before.  The symbols are usually placed after the mark in smaller, raised font.  For example:  MY MARK ™….  or MY MARK ℠ (For a real world example, take a look at a pack of peanut M&M’s.  I just noticed the TM mark on their packaging a few days ago.)

Using the TM and SM symbols with your mark, before it is registered, is a good idea.  However, don’t forget that using these symbols is not the same thing as registering your trademark and consequently using them doesn’t offer a guarantee that your mark will be protected under trademark laws.

See also: http://wp.me/p10nNq-B picking a strong business name by searching the USPTO data base of trademarks; INTA fact sheet on trademark symbols at www.inta.org/TrademarkBasics/FactSheets/Pages/TrademarkSymbolsFactSheet.aspx  and www.inta.org/TrademarkBasics/FactSheets/Pages/MarkingRequirementsFactSheet.aspx; @iplegalfreebies and www.kasterlegal.com

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com