When Can You Use the TM Symbol, and When Can You Use the Registered Symbol?

The symbols are small, but they sit at the point where trademark claims, federal registration and remedies meet, all of which our main copyright and trademark law page introduces. This page covers which symbol you may use at each stage, what the registration notice does for you in court, what goes wrong when it is used too early or on the wrong products, and how state and foreign registrations fit in.

How Trademark Notice Works, From First Use to Registration, Step by Step

1. You start using the mark. You can put TM next to a mark for goods, or SM next to a mark for services, right away. No application is needed.
2. You file a federal application. Nothing changes on your labels. A pending application does not allow the registration symbol (TMEP 906). Our page on how long registration takes explains the wait.
3. The mark registers. From the registration date you may use ®, "Registered in U.S. Patent and Trademark Office," or "Reg. U.S. Pat. & Tm. Off." with the mark (15 U.S.C. 1111).
4. You match the symbol to the registration. Use ® only with the goods or services the registration lists; keep TM or SM on everything else.
5. You keep the registration alive. The required filings between years five and six and before each tenth anniversary keep the right to use ®.
6. If the registration is canceled or expires, you go back to TM or SM.

What Do TM and SM Mean?

They are claims, not registrations. The USPTO says you can use "TM" for goods or "SM" for services even if you have not filed an application, and that a symbol lets consumers and competitors know you are claiming the mark as yours (USPTO, What is a trademark?). Its examination manual adds that a party may use terms such as "trademark," "trademark applied for," "TM" and "SM" whether or not the mark is registered, and that these are not official or statutory symbols of federal registration (TMEP 906).

The difference between the two follows the statute's definitions. A trademark identifies and distinguishes goods; a service mark identifies and distinguishes services (15 U.S.C. 1127). A brand that sells both, such as a bakery that also runs cooking classes, can use TM on packaged goods and SM in class listings. Neither symbol creates rights on its own; it tells people you are claiming them.

When Can You Use the ® Symbol?

Only after the USPTO registers the mark. The manual is direct: the federal registration symbol may not be used with marks that are not actually registered, and even if an application is pending, the symbol may not be used until the mark is registered (TMEP 906). The statute gives three forms of notice: the words "Registered in U.S. Patent and Trademark Office," the abbreviation "Reg. U.S. Pat. & Tm. Off.," or the letter R in a circle (15 U.S.C. 1111).

The USPTO says you may place the symbol anywhere around the mark, though most owners use it as a superscript or subscript to the right, and that you may only use it with the goods or services listed in the federal registration. Reaching registration takes time, and our post on how to register a trademark in 8 steps walks through it. The government fees along the way are set out on our page about what a federal trademark costs from filing to renewal.

What Does the ® Symbol Do for You?

It protects your ability to collect money. Under 15 U.S.C. 1111, in a suit for infringement by a registrant who failed to give notice of registration, "no profits and no damages shall be recovered" unless the defendant had actual notice of the registration. A registration is already constructive notice of the owner's claim of ownership (15 U.S.C. 1072), but section 1111 applies "notwithstanding" that rule, so the visible notice still matters for remedies. Those remedies are explained on our page about trademark infringement damages.

Actual notice can also come from a letter. An owner that never used ® can still send a cease and desist letter citing its registration, and from then on the recipient has actual notice. Our page on what to do after a trademark cease and desist letter covers that from the recipient's side.

What If You Use ® Too Early or on the Wrong Products?

Usually it is treated as a mistake, but it can be worse. The manual says improper use of the registration symbol that is deliberate and intended to deceive or mislead the public is fraud, while noting that misunderstandings are more frequent than actual fraudulent intent (TMEP 906.02). The common innocent reasons it lists include:

• Confusing trademark notice with copyright notice, which may be given on first publication.
• A printer who was not given proper instructions.
• Believing a state or foreign registration allows the symbol.
• Registration of only a portion of the mark, or of the mark for other goods.
• A recently expired or canceled registration.
• Another registered mark on the same label.

In examination, if a specimen shows ® with an unregistered mark, the examining attorney points out that USPTO records do not show the mark as registered and that the symbol may not be used until it is, without requiring an explanation (TMEP 906.03). Deliberate misuse intended to deceive the public or the USPTO is fraud (TMEP 906.04, citing Copelands' Enterprises Inc. v. CNV Inc., Fed. Cir. 1991), and the examiner cannot refuse registration on that basis but must follow the manual's separate fraud procedures.

The larger exposure is in disputes. The Trademark Trial and Appeal Board lists, as an available ground for opposition or cancellation, that a defendant "has misused the federal registration symbol with intent to deceive the purchasing public or others in the trade into believing that the mark is registered," and its manual notes the Board has treated a misuse allegation as a form of the unclean hands defense (TBMP 309.03(c)). A separate statute makes anyone who procures a registration by a false or fraudulent declaration liable for damages to a person injured by it (15 U.S.C. 1120).

How Do the Symbols Work on Merch and Social Bios?

Follow the registration's list. The manual says the registration symbol should be used only on or in connection with the goods or services listed in the registration (TMEP 906). A podcast or band registered for entertainment services, for example, has ® for those services; if the registration does not list clothing, the same name on a T-shirt takes TM until a registration covers it. Our page on trademark classes for merchandise explains how goods like shirts, mugs and posters are classified.

Online, the same rule applies to how the name appears with what you offer. A creator's channel name used to promote services the registration covers can carry ®; a name that is only applied for stays at TM or SM. Our page on trademark protection for content creators covers what to register first.

What About State and Foreign Registrations?

A state registration does not count. The USPTO's manual says registration in a state does not entitle a person to use the federal registration notice, citing a 1964 Board decision, and lists the mistaken belief that a state registration permits the symbol among common misuses (TMEP 906, 906.02). Our page comparing common law, Georgia and federal trademark protection explains what a Georgia registration does provide.

Foreign registrations are treated differently in one respect. Several countries also use ® to show registration, and when a foreign applicant's use of the symbol on its specimens rests on a registration in its own country, the manual says the use is appropriate. The list in TMEP 906.01 includes Belgium, China, Costa Rica, Denmark, Ecuador, Germany, Guatemala, Hungary, Ireland, Luxembourg, the Netherlands, Nicaragua, Poland and Sweden, and owners of European Union trademarks use the symbol too. A U.S. brand expanding abroad should check each country's own rules; our page on protecting a U.S. trademark in other countries covers the filing route.

What Changes the Answer

• Registered or pending. Only a registered mark may carry ®; an application, even one approved for publication, does not (TMEP 906).
• The goods or services. The symbol belongs only with what the registration lists (TMEP 906).
• Part of the mark. If only the word is registered, using ® as if a larger logo were registered is one of the misuses the manual lists (TMEP 906.02).
• The registration's status. A registration canceled for a missed maintenance filing (15 U.S.C. 1058) no longer supports the symbol.
• Intent. Honest mistakes are common; deliberate deception is fraud and a ground for opposition or cancellation (TMEP 906.04; TBMP 309.03(c)).

A Worked Example

Common Mistakes

• Using ® as soon as the application is filed. The symbol must wait for registration (TMEP 906).
• Putting ® on every product line when the registration covers only one.
• Using ® based on a Georgia or other state registration.
• Leaving ® on packaging after the registration is canceled or expires.
• Treating TM as protection in itself. It is a claim; registration is what supports ®.
• Skipping notice on a registered mark, which can cost profits and damages against infringers who lacked actual notice (15 U.S.C. 1111).

What to Do This Week

1. List every place your mark appears: packaging, labels, website, social profiles, merch and signs.
2. Check the USPTO record for each mark: registered or pending, and the goods or services listed.
3. Mark each item ®, TM or SM to match what the registration covers.
4. Send updated artwork and clear instructions to your printer.
5. Calendar the maintenance deadlines so the right to use ® does not lapse.

Frequently Asked Questions

Do You Have to Use Any Symbol at All?

No law requires TM or SM. For a registered mark, notice is optional too, but without it the owner cannot recover profits or damages from an infringer who lacked actual notice (15 U.S.C. 1111).

Do You Have to Put ® Next to Every Use?

The USPTO says you can use a symbol every time you use your mark; it does not say you must. What matters under 15 U.S.C. 1111 is that notice is given with the mark.

Is the © Symbol the Same Thing?

No. © is copyright notice, which may appear on a work when it is first published. The manual lists confusion between the two notices as a common cause of misuse of ® (TMEP 906.02). Our page on copyright notice explains the © rules.

What Happens to ® If Your Registration Lapses?

It should come off. A recently expired or canceled registration is among the misuses the manual lists (TMEP 906.02). Our page on trademark maintenance deadlines and fees sets out the filings that keep a registration in force.

Can a Foreign Company Use ® in the United States Based on Its Home Registration?

The manual treats a foreign applicant's use of ® on its specimens as appropriate when it rests on a registration in a country that uses the symbol (TMEP 906.01). The federal notice under 15 U.S.C. 1111 itself belongs to marks registered in the USPTO.

Can You Use the Words "Trademark Applied For"?

Yes. The manual lists "trademark applied for" among the terms a party may use whether or not the mark is registered (TMEP 906).

Zala IP Law prepares federal trademark applications and advises brands, creators and businesses on using and protecting their marks. If you are not sure which symbol belongs on your labels, request a consultation or call 404-313-1701, and have your registration or application number ready.