Often seen alongside logos, product names, or slogans, the ® and ™ symbols have meanings that are sometimes misunderstood. These symbols indicate a specific legal status, which may vary from one country to country.
So, what protection do these symbols provide, and in what contexts can they be used?
Protection varies by jurisdiction
The protection offered by the ® and ™ symbols depends on the country in which they are used. There is no global standard ensuring a consistent interpretation of these symbols and their legal value. Indeed, the World Intellectual Property Organization (WIPO) highlights the need for caution when using these symbols.
These symbols are particularly importance in Common Law countries such as the United States and the United Kingdom, where they play a crucial role in protecting trademarks, whether registered or in use. In the United States, for instance, the use of these symbols is essential to claim damages in a trademark infringement case.
However, in countries like France or within the European Union, the use of the ® and ™ symbols has no direct legal effect on the protection of a trademark. Their use is not mandatory but is primarily a tool for communication and deterrence.
The ® symbol: protection of registered trademarks
The ® symbol, which stands for "registered trademark", is exclusively for trademarks that have been both filed and registered with an intellectual property office. This symbol ensures full legal protection and may only be used for trademarks that have been officially registered.
Displaying the ® symbol next to a trademark informs third parties of the exclusive rights granted to the owner. It means that the use of an identical or similar sign for comparable goods or services is strictly prohibited and may result in legal action, including infringement claims.
Caution is therefore advised. Improper use of the ® symbol on an unregistered trademark may result in legal penalties in certain countries, as it misrepresents the legal status of the mark. For example, in France, using the use of the ® symbol on a mark that has not been registered with the INPI (French trademark office) could be considered misleading commercial practice under Article L. 121-2 of the Consumer Code. In the United Kingdom, misuse of the ® symbol is a criminal offence, punishable under Section 95 of the Trade Marks Act 1994.
The ™ symbol: claiming rights over an unregistered trademark
The ™ symbol, short for "trademark", is typically used to indicate that an individual or company claims a sign as a trademark, even if it has not yet been officially registered with an intellectual property office. The ™ symbol can be used as soon as a sign is in use, or if it has been filed as a trademark but not yet registered. However, using the ™ symbol does not provide any legal guarantees regarding the validity of the trademark (such as distinctiveness, legality, availability, or lack of deceptiveness).
The main interest of using the ™ symbol is its deterrent effect. By publicly signalling that someone is claiming rights to a sign, it warns third parties, particularly competitors, that the sign is of value and that any attempt to imitate or appropriate it could result in legal action.
When launching a new brand, it can be strategically advantageous to include the ™ symbol into related communications, thereby increasing the perceived level of protection around the brand.
It is also worth noting that in the United States, the use of the ™ symbol can establish what are known as "common law rights." These rights allow legal action to be taken in state courts based on the use of a sign as a trademark, even if it is not registered. However, this protection is much weaker than that provided by a trademark officially registered with the U.S. Patent and Trademark Office (USPTO).
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The use of ® and ™ symbols is a strategic decision that should be carefully aligned with the legal status of your trademarks (whether registered or not) and the territory where they are used or intended to be used in the future. Far from being mere formalities, these symbols are powerful tools for asserting your exclusive rights and deterring potential infringement.
Our firm is here to guide you through this process and provide expert advice on managing and protecting your trademarks.
