Next to most logos or brand names, you can find either a ™
or a ®. Obviously, they must have some
significance, but what is the difference between the two symbols?
First and foremost, the ™ means that the mark is being used
as a trademark to denote the source of the goods. It should mean that the mark is not federally
registered though, although sometimes it is used for marks that have been
federally registered, but perhaps because the federal registration occurred
after the mark was used/printed on products.
The ™ could mean: (1) a federal trademark application has been filed and
is pending; (2) that a state application has been filed and has been granted or
is pending, or (3) it can just mean that no trademark application has been
filed either at the federal or state level (or that the application(s) has/have
been denied/abandoned), but this mark is being used to distinguish goods. In
any case, the owner of the mark has common law rights even though the mark has
not been federally registered.
The ®, on the other hand, is only used for marks that have
been granted federal registration. This means that the mark has been registered
with the United States Patent and Trademark Office and the application has been
Anyone using a mark to distinguish his/her goods from other
goods can put a ™ next to the mark, although there are certain reasons why one
would want to register their mark either at the state level or federal level. In order to obtain federal registration of a
mark, the mark must be used in conjunction with goods in interstate commerce,
or more than one state.
One benefit of federal registration is that you have
exclusive nationwide ownership of the mark. Additionally, after five years of
continuous use from the date of registration, the rights to the mark become
incontestable. However, having a state trademark or just using the mark in
one’s geographic region but never registering it, actually gives the owner some
rights over potential federal registrations.
For instance, if you are using your mark in the Albuquerque
area but have never registered it, somebody else could potentially obtain the
federal registration for the mark. This indicates that that person has complied
with all requirements and obtained federal registration status. However, you,
being the common law owner of a mark by using it in a geographic region before
the federal registration by the other applicant, actually have rights in that
specific geographic region. Thus, the owner of the federally registered mark
cannot undercut you in the Albuquerque region. However, the owner could
possibly go into the Las Cruces area or even the Santa Fe area if you have not
used the mark in those areas before the federal registration was obtained.
Therefore, you are potentially protected without ever registering your mark,
but by registering your mark, you will obtain the most complete protection.
If you are using a mark in more than one state, you should
obtain federal status. If you never plan to expand outside the state, obtaining
New Mexico protection for your mark may make the best business sense, as it
will cover you everywhere in the state, not just in the locality where you are
To determine whether federal registration or state
registration for your trademark will work best for you and to get your
trademark filed, contact a Law 4 Small Business today.
Author: Kameron Kramer
Kameron is an experienced business law and intellectual property attorney. With a technical background gained as a chemical engineer, Kameron uses his varied skills to provide general counsel and start-up services to many local and regional companies.