We explain what the TM (trade mark) and copyright symbols mean, when and how to use them.

TM symbol

What?

Abbreviates the words “trade mark”.

Simply conveys you are treating the particular brand element as a trade mark.

Does not confer any protection + cannot be relied on to prevent third party use of your trade mark.

Not compulsory but generally desirable to convey a strong IP position.

When?

Anytime:

You do not need to have filed an application.
You do not need to have achieved registration.
Not compulsory but certainly desirable to convey a strong IP position.

Why?

Deterrent

The TM symbol may deter competitors from using or applying to register same or similar mark.  At the very least it conveys possible common law (unregistered) rights.  A well advised trader would at least conduct further analysis.

Useful for use

It may be that your trade mark currently is not distinctive enough to qualify for registration + you are accumulating use to demonstrate that the mark has acquired distinctiveness.

When it comes to filing evidence of use, consistent use of the TM symbol may assist in demonstrate that you have been using the applied for trade mark as a trade mark and may assist in securing acceptance.

How?

Letters typically written in subscript / superscript style immediately after the trade mark™ (that is, appearing smaller than the normal line of type and is set slightly below or above it).

example:              GESTALT™

Seems simple – anything to watch out for?

Given that the mark need not be registered or the subjection of an application, the TM Symbol is often used liberally by traders.  However, care is warranted because if your use is challenged by another trader, they may argue that this evidences trade mark use of the infringing trade mark.  Use as a trade mark is an element of an infringement claim.

® symbol

What?

Conveys that the trade mark is registered.

Does not confer any protection + cannot itself be relied on to prevent third party use.
Not compulsory but generally desirable to convey a strong IP position.

When?

Strictly only once registered.  Filing an application to register the mark does not mean that the mark is registered and the mark must have achieved registered status.

In Australia (and many other countries) it is an offence to represent that a mark is registered when it is not.

Why?

May deter competitors from using or applying to register the same or similar mark by conveying that the trade mark is registered.

How?

Letters typically written in subscript / superscript style immediately after the trade mark®

example:              GESTALT ®

Seems simple – anything to watch out for?

Take great care to ensure that the R symbol is not used before it is registered.

Do not include the R symbol in a mark when applying to register it.  You will receive an objection from the Trade Marks Office on the basis that the mark contains a prohibited sign.

There are some potential issues if you are distributing goods or services in countries outside Australia.

As outlined above, many countries prohibit representing an unregistered trade mark as registered. If goods are actively promoted, distributed or sold in another country, care should be taken with packaging / promotional materials, representations and use of the r symbol. If universal packaging / promotional materials are desired, consider securing registered trade mark protection in all relevant countries or consider using the TM symbol instead of the R symbol.

The Internet raises special considerations regarding trade mark use and use of the R symbol.  Of course websites can be accessed from anywhere in the world. However, in trade mark terms the question is whether goods or services are available to and / or actively promoted in a particular country.

Therefore, careful analysis is warranted for international communications.

© symbol

What?

The letter C stands for copyright and the C symbol is used to convey that copyright protection exists in copyright works apart from sound recordings. The C symbol is typically used in a copyright notice.

The C symbol used to be more significant when the USA was not a member of the Berne Convention and it would only recognise copyright where the © symbol was used in accordance with the Universal Copyright Convention (overtaken by the other treaties that do not require this formality).

Does not confer any protection + cannot itself be relied on to prevent third party use.

Not compulsory but generally desirable to convey a strong IP position.

If you have any further questions about Intellectual Property symbols and how to use them correctly then please contact Lance Scott.‍