Often when looking at a product on the supermarket shelf, or seeing a company name or logo, you will see either a ‘TM’ in small font (™) or a small ‘R’ in a circle ( ® ) next to it. So what is the difference between the ™ and ® symbols? Below, we will outline the difference between ™ and ®, and which one you should opt for if you want to protect your brand.
What is a Trademark?
A trademark is a ‘mark’ which is used to identify your business. These can take many forms including words, letters, numbers, colours, a phrase, a sound, scent, shape, pictures and any other aspect of packaging or branding which distinguishes you from other traders. Often used as a marketing tool, particular logos, phrases or pictures allow customers to identify your brand. Apart from customer recognition, having a ‘brand’ sets your business apart from your competitors. This is what makes trademarks so valuable. However, with this value comes the need for legal protection. Having a trademark legally registered means that you can take legal action against someone who uses your trademark without your consent or knowledge.
™
You can claim that something is a trademark even if it is not legally registered, and this where ™ is used. Using ™ serves as a ‘warning’ to other traders that you consider your brand to be a trademark. These trademarks may be unregistered because they still have an application pending, or they have not registered it but still wish to assert their legal rights. In reality, if someone uses this mark illegally, the owner of the product marked as ™ has little to no legal rights. You will likely come across many things that have the ™ symbol attached to it, but these do not actually offer the holder of the mark any legal protection. Interestingly, some global brands still use ™ to identify their products, for example, the Starbucks logo has the ™ symbol attached to it.
®
The ® symbol is used to identify marks which have been registered as trademarks with IP Australia. Registering your trademark offers concrete protection against any competitors, businesses or individuals from using your mark or one that is substantially similar. The action of another person using your registered trademark as their own is known as ‘passing off’, and can result in the person who used your trademark facing legal action and incurring potentially significant financial penalties.
An example of some well-known trademarks are the Apple logo, the Google logo and even the McDonald’s golden arches. If other companies were able to use these logos and pass them off as their own, the companies who designed the logos in the first instance would be severely disadvantaged.
Which one Offers the most Protection?
Registering your trademark offers more protection than merely labelling it as a trademark. The difference between ™ and ® is simply that one offers legal protection and the other is simply a statement. Although the ™ symbol can be marked on anything, it is a criminal offence to label a trademark with the ® symbol when it has not been registered, and doing this can lead to broader implications of fraud. Deciding on the level of protection you require involves establishing how valuable you think your mark will be to your brand, how unique it is, and how far you want your intellectual property rights to go. This is where a Trademark Lawyer can help you identify what intellectual property protection you need.
