Are you using ™ or ® correctly? Why It Matters So Much for Entrepreneurs

THE GUIDE FOR CORRECT TRADEMARK SYMBOL USE AND THE COST OF DOING IT WRONG

KEY INSIGHTS

• Using ® before your trademark is federally registered is a violation of federal law—a matter the USPTO treats as potential fraud.

• The ™ and ® symbols communicate fundamentally different things to your market. The ™ symbol is the owner saying “I believe I have an established, protectable trademark.” The ® symbol is the USPTO saying “We agree.”

• Research on purchasing behavior shows that brands that signal a high degree of credibility win the vast majority of business, and the ® symbol plays a huge role in providing visible evidence of credibility.

THE FREQUENT QUESTION

One of the most frequent questions I get as an attorney is also one of the most frequent mistakes I see made in the creator economy—whether, when, and how to use the ™ and ® symbols.

One of my clients has been building her coaching business for over four years. She has an established client base and runs two masterminds that are finally selling out. My client recently noticed that another coach operating in a similar space (Client B) is using the ® symbol for everything—her business name, courses, and all offers.

My client knew she needed to get her business name registered to secure ownership, but now she wonders if she should do the same for her masterminds.

“I just didn’t realize the ‘R’ symbol could be used for things like that,” she said.

“Hold that thought,” I said as I logged on to my portal with the U.S. Patent and Trademark Office (USPTO), searched the named products on the Client B’s website, and scanned the USPTO results. Within a few seconds, I confirmed the following:

Coach B did, in fact, have a registered trademark for the name of her business. However, no registered marks were awarded to any of the other products depicted on the website with a ® symbol.

“So, here’s the deal,” I said. “[Client B] has no registered trademark for anything other than the name of her business, which means her use of the ® next to anything else is unlawful. It’s possible she got some bad advice from Google, ChatGpt, or someone else. Or maybe she assumed that ‘sub-brands’ automatically fall under the registered status of the ‘main’ brand, but they do not. Using the ® the way she’s using it is a violation of federal law, and the USPTO considers it fraud.”

“Oh my gosh, she probably has no idea,” said my client.

“You’re probably right,” I said. “She probably doesn’t realize there’s a perfectly lawful alternative assuming her other products are established, protectable trademarks. If so, she should use the ‘TM’ symbol.”

“That was my next question because I see the ‘TM’ symbol everywhere, but I’m afraid to use it,” my client continued. “There just doesn’t seem to be much consistency out there in how it’s used, so it freaks me out a little.”

She is absolutely right. About all of it. The symbols are confusing, but for creative entrepreneurs, their ability to use these key identifiers accurately, visibly, and consistently is a really big deal.

WHAT ™ AND ® ACTUALLY MEAN

Let’s deal with the confusion first. The distinction between ™ and ® is one of the most commonly misunderstood points in intellectual property law.

The ™ symbol signifies the potential existence of a trademark. Absent formal acknowledgment, the ™ symbol simply means that the owner believes it possesses established, protectable trademark rights in the brand mark. However, it does not mean a business competitor, judge, jury, attorney, or federal trademark examiner would agree. That requires formal recognition.

Many states have established processes to formalize trademark rights, but in the United States, the gold standard is federal trademark registration through the USPTO. However, filing the application does not give anyone the right to use the ® symbol. That’s because filing does not equal registration.

It all comes back to the ®—the “R” means Registration, and you’ll know when it happens because it comes with a formal Certificate of Registration after a process that takes an average of 9 months to 2 years.

Using ® prematurely can lead to rejection of filings and may be treated as fraud. The USPTO does not treat this lightly. Improper use of the federal registration symbol that is deliberate and intends to deceive or mislead the public or the USPTO is fraud under established federal case law, and can result in cancellation of any pending trademark applications.

In the meantime, the ™ symbol can be used to put the world on notice that your brand mark is claimed as a trademark. It signifies your intent to assert trademark rights in your brand, but does not carry the validity, credibility, legitimacy, nationwide status, and enforcement rights that come with USPTO registration.

Our General Rule of Thumb

Once you have an established, protectable mark,* go with the ™ symbol. But once you get the ®—use it—proudly, visibly, and consistently!

WHAT’S THE BIG DEAL?

Why Is This Such a Big Deal for Creators?

I’ve represented entrepreneurs for over two decades, and the between clients with registered marks and clients with unregistered brands is undeniable. For creative entrepreneurs, trademark registration is one of the most powerful marketing tools available.

Let’s go back to my client. Consider three coaching businesses offering the types of services. The first does everything under a business name with no symbol at all. The second uses ™ for its branded marks. The third uses ®—prominently, consistently, and everywhere the branded marks show up.

From a legal standpoint, the difference between the first and second is negligible. But there is a difference in perception.

For the first coaching business, the absence of any symbol communicates nothing about the ownership or value of the business or brand. As a result, potential infringers are far more likely to consider the brand and its proprietary assets (like the names and contents of courses, masterminds, programs, and other offers) as fair game for their own use. For potential customers, the lack of any trademark protection signifies something more subtle but more damaging. Customers are far less likely to take the business seriously or view it as a credible, established source of goods and services.

The ™ symbol is better. It communicates the owner is claiming trademark rights and asserting them, which does deter potential infringement and intrigue a potential customer far more effectively than no symbol at all. But the real-world significance between the ™ and the ® is enormous.

In an industry where creative entrepreneurs are competing for attention, trust, and authority, a registered trademark acts as a powerful tool to increase visibility and as a shortcut in the decision-making process, pragmatically and intuitively. When people are faced with multiple options, they are more likely to choose a brand that conveys legitimacy and credibility and a business that visibly stands behind the value of their brand. Only the ® holds this power.

The ™ might stop a potential customer in their scroll, but the ® will convert them to a client.

That’s why the ® symbol is such a big deal.

That’s also why unlawful use of the ® symbol is a big deal. But, thankfully, it’s rare. Anyone attempting to leverage the power of the ® symbol without earning it should be on notice that it won’t end well. The creative community may not understand or care about the legal distinctions we’ve covered here, but we care about fraud. But it only takes a few seconds to verify the authenticity of a brand with the ®.

And, yes, it does take some time, money, and patience to get there, but it’s worth it 1000% of the time.

WHY INFRAME

InFrame Law protects the brand, creative work, and content of creative entrepreneurs. We do this through a single, affordable framework that integrates the trademark, copyright, and intellectual property services creators need to protect and position their work.

As a law firm built by creative entrepreneurs for creative entrepreneurs, we know what it takes to build an income-producing body of work in the creator economy. We know how that work operates over platforms and applications and how quickly and easily these assets can be copied, stolen, and misused.

Yet, no one is truly protecting creators’ work–not the platforms, not the applications, not the template shops, and definitely not the law firms. Creators are left to figure it out for themselves, leaving their most valuable assets completely exposed. Not because they’re careless or naïve, but because the available legal “solutions” come from old-world approaches that cost a small fortune and do not work. We know this–not just from 20 years of legal practice, but as creators just like you.

This is Why InFrame. We provide the legal solution that didn’t exist until now–complete asset protection for your brand, creative work, and content, in one framework that places your body of work exactly where it should be.

Protected, Positioned, and InFrame.