TM Symbols: Recent T®ends

06.17.15

The ® symbol is generally accepted worldwide to designate trademark registration, and there are many benefits to using the symbol with registered marks. Yet, some choose not to use the ® symbol. Why?

The benefits are clear. In the US, failure to use the ® for registered marks limits remedies for infringement. For example, federal registration provides ​“constructive notice” of rights needed to obtain an injunction but some additional notice is required to recover profits and money damages. While that additional notice can be actual notice (e.g., by way of a cease and desist letter) or by providing statutory notice (e.g., the ®), the use of ® seems to be a logical choice between the two because it likely starts the damages clock earlier with less effort.

Yet, it was noted at the 2015 International Trademark Association annual meeting that seven of ten of Forbes’ 2014 ​“hottest startups” don’t use ® or TM. Well-known startup marks such as UBER, LYFT, ZENEFITS, THUMBTACK, PURESTORAGE, HANDY and THOUSANDEYES are typically used with no symbol at all. These are new and sophisticated companies. So why are they not using the ®? 

One explanation may be international in scope. Foreign treatment of the ® symbol varies by country. Some countries, such as Costa Rica, Indonesia and Japan, require the use of ® for enforcement. Others, such as Australia and Germany, penalize the use of ® when the mark is not registered there. As such, registration status and concerns over penalties in the event of improper use in a country can impact an international company’s strategy in using the ®. And, having to use the symbol differently in various countries can lead to a decision not to use the symbol at all.

Another explanation may be marketing or aesthetic considerations. Some companies do not care for the look of the ® symbol next to their mark. While these companies may be limiting available remedies for infringement in the US and elsewhere for appearance’s sake, this is a tradeoff they are willing to make. 

While most attorneys generally recommend that trademark registrants use the ® symbol, other considerations can factor in. A registrant may prefer to forego the benefits of using the ® symbol to avoid other ramifications, and each company should weigh the advantages and disadvantages and decide for itself which approach makes the most sense.

DISCLAIMER: The information provided is for general informational purposes only. This post is not updated to account for changes in the law and should not be considered tax or legal advice. This article is not intended to create an attorney-client relationship. You should consult with legal and/​or financial advisors for legal and tax advice tailored to your specific circumstances.

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