Trademarks can be valuable business assets. Trademarks are often called “brands.” Branding and trademarking are powerful marketing tools. Trademarks are used for both goods and for services. They can be words, phrases, symbols, marks, logos or designs that are placed on your goods that identify to consumers the commercial source for the goods. With service marks, the trademarks are placed on advertising, signage or other physical things related to the service that is trademarked. Trademarks are valuable for marketing because they allow consumers to “find” your business and to distinguish your products/services from those of your competitors.

There are a few symbols that can be used in conjunction with a trademark. One such symbol is the capitalized “TM” which can be placed near your trademark where it is used (or, in text, the “TM” usually follows the written mention of the trademark).

What Does the “TM” Mean?

Generally speaking, when your business places the “TM” symbol near your trademark, it is a public assertion that your trademark IS a trademark. More specifically, using the “TM” is a public notice that your business owns the trademark, claims the exclusive right to use the trademark and that your company actually uses the trademark. In addition, particularly when the “TM” symbol is used by itself, use of the “TM” symbol typically means that the trademark is not registered with the US Patent & Trademark Office. For registered trademarks, there is a different symbol that is commonly used, what is called the circle R symbol. The circle R symbol looks like this: ®. If you have a registered trademark, your business can use both symbols. However, the circle R cannot be used if the trademark is not registered. Thus, using the “TM” alone often means that the trademark is not federally registered.

Often, the “TM” symbol is used alone when federal trademark registration is pending or where the trademark is registered under a state trademark law or where a federal trademark cannot be registered. For example, one requirement for federal registration is that the trademark be used in interstate commerce. It is rare, but maybe your business operates exclusively intra-state. As such, federal registration will be denied. In that kind of case, only the “TM” symbol can be used. Cannabis businesses are facing a similar situation. “Illegality” is one reason that federal trademark registration can be denied. Cannabis remains illegal at the federal level, but has been legalized in many states. As such, cannabis businesses are creating and using trademarks, but cannot register those trademarks federally based on “illegality.” Thus, only the “TM” symbol can be used.

Why Does Using the “TM” Symbol Matter to Your Business?

Trademarks are valuable and effective at driving sales and profit, but it is often necessary to defend your trademark from infringement. Failing to police non-approved use of your trademark and failing to defend against infringement can lead to the loss of a trademark. Using the “TM” symbol helps protect your trademark legally and practically. Here are some examples:

• Signals that your business takes its trademark rights seriously and that your business is well-versed in trademark law
• Puts third-parties on notice of your trademark rights — this prevents infringers from arguing that “they did not know”
• Establishes some evidence that your business has not abandoned the trademark
• Establishes some evidence of trademark policing

Contact Revision Legal

For more information or if you have questions about creating and registering a trademark, contact the trademark lawyers at Revision Legal at 231-714-0100.