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Trademark vs. Registered Trademark Symbols

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How are they different?

They are ubiquitous, but what are the differences between trademark vs. registered trademark symbols?  The symbols ®️ and ™️  are applicable to US trademark law, providing protection for the marks, symbols, sounds, colors, patterns, etc., (collectively, “marks”) that are used to present their brands, products, or services. These symbols put the public on notice that the user of these marks claims exclusive rights in them.

Trademark rights are, for some businesses, the most important asset that the business owns. These businesses work diligently to create a brand that stands out against all others. This requires diligent marketing and brand positioning that takes place over time. Trademark law prevents other businesses from creating counterfeit goods or goods whose markings are so close in nature to the trademark holder’s protected mark so as to create customer confusion. Allowing this to happen would certainly erode the trademark holder’s brand. As such, trademark laws allow the holder of trademark rights to bring a legal action to exclude or stop others from the infringement.

This article discusses the various types of trademark protections and the difference between trademark vs. registered trademark symbols.

Trademark protections are both state and federal in nature. That is, all states have either statutory or common law protections in place for the users of trademarks to represent businesses conducting business within that state’s borders. The business does not have to be organized in that state, but it generally does have to actively carry on business (and potentially be registered to do business in the state). In most of these states, nothing is required to secure trademark rights other than use a mark (that meets the criteria for trademark protection) to represent an active business. If a business is already using a similar mark, any use of your mark would create a level of customer confusion, you are prohibited by state law from using your mark to represent your business. The effect of this rule is, “first come – first serve”. That is, whoever uses the mark first to represent a business within the state secures the applicable trademark protections and can exclude others from using the mark. The primary remedy for this “first to use” scenario is to secure federal trademark rights.

Federal law allows the individual who uses or intends to use a mark to represent a business, product, or service, to secure nation-wide trademark rights. These rights trump state trademark rights and allow the holder to exclude others from using confusingly similar marks in any state. Securing federal trademark rights requires filing with the United State Patent and Trademark Office (USPTO). The applicable mark must meet the criteria for a protectable mark and must be used in conjunction with a business with one year of filing for protections. Upon making a filing, the USPTO will examine the mark for protectable characteristics. If it meets the necessary characteristics, the USPTO will do a thorough search to see if a confusingly similar mark is being used anywhere in the United States. If one is being used, it will prevent the filer from securing the trademark rights. As such, it is best to do a through USPTO and internet search before filing for trademark protections. If there is no confusingly similar marks in use, the USPTO will grant trademark rights to the filer. She can now employ the federal court system to force anyone who later infringes upon her mark with counterfeit or confusingly similar goods to stop.

 


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Use of the ®️ and ™️ Trademark Symbols

The ®️ symbol, on the other hand, is used to express to the world that the mark has been register and is subject to protection under federal trademark law. Most businesses employing these symbols begin by using the ™️ and later change to using the ®️ symbol once their mark is registered.  When it comes to trademark vs registered trademark symbols, they reflect the status of trademark protections, not different kinds of protections.

The trademark symbols

®️ and ™️ are designations authorized by the USPTO to be used with marks claimed to be protected under state or federal law. The ™️ symbol indicates that the holder claims trademark rights in a particular mark. These rights may be filed federally (and pending) or claimed under state common or statutory law.

Consult a Trademark Lawyer

If you are considering seeking trademark rights in your brand, product, or service, consider talking to an affordable trademark lawyer at LawTrades.  Trademark protections are one of the most valuable assets for many businesses. It is important to protect one’s brand, product, or service, against infringement, dilution, or customer confusions, and we can provide you all the guidance and services you need to ensure you’re covered.


 

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