The litany of alphabet letters that sometimes accompany trademarks used in commerce can be particularly confusing, even for the users. The task becomes even more difficult when copyright symbols are factored in. Here’s a handy guide to deciphering the little subscripted letters next to trademarks and copyrights.
There are three symbols that are used for trademarks: ™, SM, and ®. We’ll start with ® first since that is probably the one that is used the most often. The R in a circle is only allowed to be used on marks that have been duly registered and are valid at the U.S. Patent and Trademark Office. Registrations obtained through a state do not allow the user to affix the circle R symbol on their marks. Using the ® on a mark that has not been registered at the federal level or is no longer registered is considered fraud upon the USPTO, and can carry serious consequences.
The ® is not just a status symbol showing that this particular trademark owner was successful in receiving a registration from the USPTO. Under the Lanham Act (the trademark law), the use of the ® also puts infringers on notice that the mark is registered at the USPTO. Failure to use the ® by the owner of the mark means that if they sue an infringer, they may not be able to recover lost profits or certain types of damages from the infringer. For this reason, we recommend that our clients who have expended the time and effort to go through the trademark process use the ® symbol with their federally registered marks. Doing so may provide a significant legal benefit in the future in the unfortunate event they have to sue someone for trademark infringement.
™ and SM are reserved for common law marks, or marks that are not registered with the USPTO. They are not used interchangeably with each other, however. ™ stands for Trademark and should be used solely on goods (i.e. tangible things) that are sold. SM stands for Service Mark and should only be used on services that are sold. While there is no statutory benefit to using these designations, they do give potential infringers notice that you consider the mark to be protectible. These can also be used on marks that have been registered at the state level, but not the federal level.
Any eligible work, regardless of whether it has been registered at the U.S. Copyright Office, can use the © symbol. The most accurate way to use it is to put ©, year of publication (not creation), and the name of the copyright owner. Many also include “all rights reserved.” Using a copyright notice is not required in the US and provides little if any legal benefit. Placing the © on the work can refute an infringer’s argument that the infringer did not know that the work was protected by copyright. Also, displaying a copyright notice on a work can provide some benefit in foreign countries. Unlike patent and trademark laws, which require you to file for protection in each country, copyright protection in certain foreign countries is automatic for US registered works.
An exception exists for sound recordings. Sound recordings are the actual recorded version of a song or other musical work. It is what you hear when you queue up your favorite ABBA song. This is different than the underlying musical work which are the lyrics and the composition. The sound recording earns its own copyright protection and gets to use it’s own symbol: a P in a circle.
If you have questions about intellectual property, including proper symbol usage and how to go about obtaining the right to use those symbols – or you want to argue about which ABBA song is best (it’s “The Winner Takes It All” FYI) – please do not hesitate to reach out to our law office. WE would welcome the opportunity to start the process of protecting your company’s valuable intellectual property assets.