We get this question often. The answer is simpler than most people expect, but the consequences of getting it wrong are worse than most people realize.

Short version: you can start using TM right now. The ® symbol you have to earn.

Symbol	What it claims	Registration required?	Who uses it
TM	You are claiming this as your trademark	No	Any brand, any time
SM	Same claim, for a service instead of a product	No	Service businesses
®	Your mark is federally registered	Yes, USPTO registration certificate	Registered owners only

TM: no permission required

The TM symbol is not regulated by anyone. There is no form, application, or fee. It’s placed next to your brand name, logo, or slogan.

This communicates that you’re claiming this as your trademark. Think of it as planting a flag. It does not give you federal protection. It does not mean your mark is registered. But it tells competitors you consider this mark yours, and sometimes that alone is enough to keep someone from copying you.

SM: the service mark version

If what you sell is a service rather than a product, you can use SM instead of TM. For example, landscaping companies, consulting firms, and law practices could use SM, and it functions the same way that a TM symbol does.

Most service businesses just use TM anyway, and that’s fine as TM is widely understood to cover both. SM is a more precise signal if you want it, not a requirement.

Can I use TM without registering?

Yes. You don’t need a filed or pending application, or a lawyer’s permission. If you’re using a name, logo, or slogan in commerce and you consider it yours, you can put TM on it today.

What TM does not do is give you the enforcement power of a federal registration. Common law rights are limited to the geographic area where you actually operate, and proving them is slow and expensive. TM stakes the claim. Registration is what makes it easy to defend.

®: only after registration

The ® symbol means your trademark has been officially registered with the USPTO. Using it before that happens is not just premature, but potentially illegal.

Federal law prohibits using ® on marks that are not registered. If you use it on an unregistered mark and that comes up in a dispute, it can be used against you. Courts have denied damages to trademark owners who falsely used ®, treating it as a misrepresentation to the public.

Pending application? Still use TM.

A pending application does not give you the right to use ®. Your application could sit with the USPTO for 8 to 14 months, sometimes longer. During that entire window, you should be using TM. Only switch to ® after the USPTO issues your official registration certificate, not when you file, pass examination, or when your mark gets published in the Official Gazette. This can be used after registration only.

Once you are registered, use ®

Federal law says that if you do not give notice of your registration, you generally cannot recover the infringer’s profits or your damages unless you can prove they actually knew your mark was registered. The ® symbol is that notice. Leaving it off can quietly shrink what you are able to recover later.

The written alternatives are “Registered in U.S. Patent and Trademark Office” or “Reg. U.S. Pat. and Tm. Off.” Most businesses use ® because it is shorter and cleaner.

Placement and formatting

Superscript, upper-right corner of the mark. You do not need to include it every single time the mark appears. First mention or most prominent placement is standard.

A few practical rules:

• Use it on your website, social profiles, packaging, and marketing materials.
• Attach it to the mark itself, not to a sentence about the mark.
• Be consistent with usage.
• In long body copy, once at first mention is enough.

Symbols outside the US

TM and ® are US conventions, and ® specifically means registered with the USPTO. A registration in another country does not entitle you to use ® on US-facing materials, and your US registration does not travel abroad either.

If you sell internationally, the safe default is TM everywhere and ® only in the countries where you actually hold a registration. Trademark rights are country by country. The symbol follows the registration, not the brand.

The mistake we keep seeing

Business owners add ® to their brand the moment they file, thinking the application itself gives them the right. It does not. And if someone challenges your mark later, premature ® usage can weaken your position or get your claims thrown out.

We’ve had clients come to us mid-dispute where the other side pointed to the premature ® as evidence of bad faith.

Use TM freely. Use ® only after registration. If you are unsure where your application stands, please discuss with a trademark attorney.

Frequently asked questions

What If I Decide to Not Apply After Seeing My Search Report?

It happens more often than you’d think. You order a trademark search, you’re excited about the name, and then the results come back showing someone else is already using something similar. Or worse, they’ve registered it.

Nobody wants that news. But it’s exactly the kind of news you need before you pour thousands into branding, packaging, and marketing around a name you might not be able to protect.

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A Search Report Isn’t a Rejection

A trademark search is not a denial from the USPTO. It’s an analysis of what’s already out there: registered trademarks, pending applications, common law uses, sometimes domain names and business filings.

The purpose is to surface potential conflicts before you file. Risk assessment, not verdict.

Sometimes the conflicts are obvious and filing would be a waste. Other times the results are more nuanced. Maybe the existing mark is in a completely different industry. Maybe it’s been abandoned. Maybe the overlap is minor enough to argue around. That’s where having an attorney review the results matters, because the raw data doesn’t tell the whole story.

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When Walking Away Is the Right Call

If the search turns up a registered mark that’s identical or very close to yours, in the same or a related industry, and it’s actively being used? Walking away is usually the smart move.

This is the search doing its job.

Think about the alternative. You file anyway, pay the government fees, wait 8 to 12 months, and then get an office action citing the exact conflict you could have caught early. Or you build a whole brand around the name, get traction, and then a cease and desist letter shows up.

A search costs a fraction of what a rebrand costs.

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What Happens to the Money You Already Spent

At Indie Law, the search is a separate step from the application. If you decide not to move forward after reviewing your results, you haven’t burned your application fees, because you haven’t filed one.

You spent money on intelligence. That’s a good investment even when the intelligence tells you to pivot.

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What to Do Next

If the search rules out your first choice, you’ve got options. Sometimes a small tweak to the name, adding a word, changing the phrasing, can create enough distance from the existing mark. Your attorney can tell you whether a modification is likely to clear.

If the conflict is too close, it may be time to go back to the drawing board. Frustrating, yes. But infinitely better than building on a name someone else owns.

And once you have a new direction, run another search before filing. Don’t skip it because you’re eager.

Deciding not to file isn’t a setback. It’s a smart business decision. You paid for clarity and you got it. The worst move is ignoring a problematic result and filing anyway, hoping it works out. Hope is not a trademark strategy.