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The Circle R and the TM symbols both relate to trademarks and both can be physically placed on products, packaging, advertising materials, websites, etc. The Circle R symbol is an “R” enclosed in a circle (®). While both are trademark-related symbols, there are different eligibility requirements for use, meanings, and implications. Here is a quick summary of the differences.
In brief, the TM symbol is used primarily to identify common law trademarks (although the TM symbol can be used by owners of registered trademarks). The TM symbol is an older, traditional symbol that stands for “Trade Mark.” The TM symbol is usually placed, in smaller typeface, above and to the right of a mark, word, phrase, design, logo, or some other thing that is used on products, packaging, and marketing materials. So placed, the TM symbol legally notifies others that the mark is claimed by its owner to be a trademark. Common law trademarks exist through the use of the trademark in commerce. Common law trademarks create a right to exclusive use of the trademark, and owners of such common law trademarks can sue in court for infringement. As noted, the TM symbol can be used by any owner of a trademark.
Note that there is a related “SM” symbol, which stands for “Service Mark.” However, use of the SM symbol has become rare since the distinction between a trademark and a service mark has atrophied. Use of the TM symbol is sufficient to cover any claimed service mark.
By contrast, the Circle R symbol identifies a trademark as a registered trademark. The process of applying to register a trademark is exacting and, if registration is approved, registration creates a valid trademark that, over time, cannot be challenged. In other words, by successfully navigating the registration process, a trademark moves from the status of being claimed to the status of legal validity. This is one of the most important distinctions between trademarks carrying the TM symbol versus those carrying the Circle R symbol.
The “R” within the circle stands for the word “registered.” More specifically, the Circle R symbol identifies a trademark that has been registered with the United States Patent and Trademark Office (“USPTO”) in the United States. Thus, the Circle R symbol cannot be used if the trademark is registered only at the State level.
Like the TM symbol, the Circle R symbol is usually placed, in smaller typeface, above and to the right of a mark, word, phrase, design, logo, etc. Further, like the TM symbol, the Circle R symbol serves as a notice to others that the trademark exists, is being used, and that the owner will enforce its trademark rights. However, the Circle R symbol also signifies that the trademark has significant extra legal protections provided by federal trademark laws.
As noted, the TM symbol can be used by any trademark owner. But the Circle R symbol can only be used by owners of registered trademarks. Using the Circle R symbol without a valid registration is unlawful under federal trademark laws and also under laws that prohibit false and misleading advertising and unfair business practices.
One of the most important practical consequences of using the Circle R symbol is the establishment of constructive notice under 15 U.S.C. § 1072. Once a trademark is registered with the USPTO and the registrant uses the Circle R symbol, the registrant is deemed to have provided legal notice to the entire world that the trademark is registered and owned. This has significant enforcement consequences: in an infringement lawsuit, a defendant cannot claim innocent infringement if the Circle R was prominently displayed. Innocent infringement — where the defendant did not know and had no reason to know of the plaintiff’s mark — is a factor that can reduce or eliminate damages. By using the Circle R, the trademark owner eliminates this defense and maximizes available damages.
By contrast, the TM symbol does not provide statutory constructive notice. It signals a claim to trademark status, but it does not carry the same legal weight as the Circle R. In an infringement action brought by a TM-symbol-only trademark owner, the defendant may be able to argue innocent infringement and thereby reduce the available damages.
Federal trademark registration also sets the clock running on incontestability. Under 15 U.S.C. § 1065, a trademark owner whose mark has been in continuous use in commerce for five consecutive years after federal registration can file a Section 15 declaration of incontestability. A registered trademark that has achieved incontestable status cannot be challenged on grounds that it is merely descriptive, that it lacks secondary meaning, or that another party has prior use in a geographic area not covered by the registrant’s use. Incontestability dramatically strengthens the legal position of the trademark owner in enforcement actions and makes it very difficult for competitors to attack the mark’s validity.
This benefit is simply unavailable to users of the TM symbol. Common law trademark rights, no matter how long established, never ripen into incontestability. This alone is one of the most compelling reasons to pursue federal registration.
Federal trademark registration in the United States creates an important foundation for international trademark protection. The Madrid Protocol — an international treaty administered by the World Intellectual Property Organization (“WIPO”) — allows the owner of a U.S. trademark registration to file a single international application in up to 130 countries through the Madrid System. Without a U.S. registration, this simplified international filing route is not available.
International trademark protection is increasingly important even for small and medium-sized businesses. E-commerce platforms with global reach, social media audiences that span multiple countries, and supply chains that involve foreign manufacturers all create international trademark exposure. Building a registration-based portfolio early is far less expensive than attempting to establish trademark rights in foreign markets after infringement has already occurred.
Using the Circle R symbol without a valid federal trademark registration is a federal statutory violation under 15 U.S.C. § 1111 and can constitute false and deceptive advertising under state consumer protection laws. In trademark infringement litigation, fraudulent use of the Circle R can result in the court refusing to award attorney’s fees or enhanced damages even if infringement is otherwise proven, on the theory that the plaintiff engaged in inequitable conduct. False use of the Circle R in advertising or on products can also trigger FTC enforcement action as a deceptive trade practice.
If you have questions about trademark law, the experienced attorneys at Revision Legal can help. We represent businesses, entrepreneurs, and individuals across the country. Contact us through the form on this page, visit our trademark law practice page, or call us at (855) 473-8474.
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