The rule for TM vs. R turns on one event, federal registration. You can put TM next to your brand name today, with no filing and no fee. You can use ® only after the USPTO has registered the mark, and only for the goods or services listed in that registration. Before that, your rights come from using the mark, and they reach only as far as your market.
TM vs. ®: When to Use Each Symbol
| Symbol | What it means | Who can use it |
|---|---|---|
| TM | You claim the name, logo, or slogan as a trademark for goods | Anyone, with or without an application on file |
| SM | You claim it as a service mark, the term for a mark used for services | Anyone, with or without an application on file |
| ® | The mark is registered with the USPTO | Only the owner of a federal registration, and only for the goods or services in the registration |
The USPTO says you can use TM for goods or SM for services even if you haven’t filed an application. A bakery that sells packaged cookies would use TM on the box. A bookkeeping firm or a dog walker would use SM, although many service businesses use TM, and the law treats both as trademarks.
The TM or SM symbol tells competitors and customers that you claim the mark, which can discourage copying. Keep using TM or SM while your application is pending, and switch to ® the day the mark registers.
Copyright uses a different symbol, ©, for creative works such as text, photos, and artwork, and the guide to trademark vs. copyright vs. patent explains which one covers what.
What Common Law Trademark Rights Protect
A common law trademark is a mark you own because you use it in business, without any registration. The USPTO says you become a trademark owner as soon as you start using your trademark with your goods or services.
Common law trademark rights let you stop a later business from using a confusingly similar mark in the area where you already sell. Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)) lets the owner of an unregistered mark sue anyone whose use in commerce is likely to confuse customers about who makes or sponsors the goods.
Your rights depend on facts you will have to prove: when you started using the mark, where you sold, and how well known the name is in those places. Keep dated records such as invoices, website archives, packaging, and ads. They are how you prove priority, meaning who used the mark first.
Limits of Common Law Rights
The USPTO describes common law rights as limited to the geographic area where you provide your goods or services.
Suppose you run a coffee roaster in Ohio and sell mostly in two counties. A roaster in Oregon starts using the same name without knowing about you. You probably cannot stop the Oregon business. If it files a federal application first, it gets nationwide priority from its filing date everywhere except the area where you already sell, and your brand is frozen in those two counties (15 U.S.C. § 1057(c)).
Other limits of an unregistered trademark:
- You cannot record the mark with U.S. Customs and Border Protection to block counterfeit imports.
- Your mark does not show up as a registration in the USPTO database, so a business that searches before choosing a name may not find you.
For a closer look at what happens when another business uses a similar name, see the guide to trademark infringement.
State Trademark Registration
Every state runs its own trademark register, usually through the Secretary of State. A state trademark registration costs less than a federal one; California, for example, charges $70 per class.
The protection stops at the state line: the Texas Secretary of State says a Texas registration puts the rest of Texas on notice that you claim the mark in Texas commerce. Texas registrations also expire after five years unless you renew in the last six months of the term.
A state registration does not let you use ®; the Texas Secretary of State says so directly.
What Is the Difference Between a State and a Federal Trademark?
| Common law (unregistered) | State registration | Federal registration | |
|---|---|---|---|
| How you get it | Use the mark in business | File with one state’s trademark office | File with the USPTO and pass examination |
| Where it protects | The area where you sell | That one state | The whole country |
| Symbol | TM or SM | TM or SM | ® |
| Public notice | None beyond your actual use | Notice within the state | Constructive notice nationwide |
| Government fee | None | Varies by state (California: $70 per class) | $350 per class base fee |
A state registration makes sense for a business that sells in one state and has no plans to grow past it, or as an inexpensive step while you save for a federal filing. If your business sells online or across state lines, a state registration leaves most of your market unprotected.
Federal Registration and the ® Symbol
A registered trademark is one the USPTO has examined and entered on its Principal Register, and that registration gives you three things common law rights do not:
- Nationwide priority from the date you filed the application, including places you have never sold (15 U.S.C. § 1057(c)).
- Constructive notice, meaning every later user is treated as knowing about your mark, so no one can claim they adopted the name in good faith (15 U.S.C. § 1072).
- A certificate that courts accept as evidence that the mark is valid, that you own it, and that you have the exclusive right to use it for the listed goods or services (15 U.S.C. § 1057(b)).
The ® symbol also affects what you can recover in an infringement lawsuit: under 15 U.S.C. § 1111, a registered owner who does not display the notice cannot collect profits or damages unless the defendant had actual notice of the registration, so display ® consistently once you have it. The statute also allows the longer forms “Registered in U.S. Patent and Trademark Office” and “Reg. U.S. Pat. & Tm. Off.”
If your registration covers T-shirts and you start selling coffee mugs under the same name, the mugs get TM until a registration covers them.
To decide whether a federal filing is worth the cost for your business, read should you trademark your business name. When you are ready to file, the guide on how to trademark a business name walks through each step.
What Happens If You Use ® Without a Federal Registration
The TMEP treats deliberate misuse of ® as fraud: using the symbol on purpose to deceive or mislead the public or the USPTO. It also lists common honest mistakes that are not fraud, such as a printer’s error, confusing ® with ©, believing a state registration allows it, or using ® on goods the registration does not cover.
If a specimen, the sample of your label or webpage that you submit with an application, shows ® on a mark that is not registered, the examining attorney will point it out. The examiner cannot refuse your application for fraud on that basis.
If you already printed ® on packaging or a website before registration, replace it with TM or SM now, and keep a record of when you made the change.