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We get this question constantly. And 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 that one.
TM: No Permission Required
The TM symbol isn’t regulated by anyone. There’s no form, no application, no fee. You place it next to your brand name, logo, or slogan, and you’re done. That’s it.
All it does is signal to the world that you’re claiming this as your trademark. Think of it as planting a flag. It doesn’t give you federal protection. It doesn’t 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.
If you’re offering services, you’ll sometimes see SM (service mark) used instead. Either way, no approval needed.
®: Only After Registration
Different story. The ® symbol means your trademark has been officially registered with the USPTO. Using it before that happens isn’t just premature. It’s potentially illegal.
Federal law prohibits the use of ® on marks that aren’t registered. If you use it on an unregistered mark and that fact comes up in a dispute, it can be used against you. Courts have denied damages to trademark owners who falsely used ®, treating it as fraud on the public.
Not a technicality. A real risk.
Pending Application? Still Use TM.
This is where people trip up. 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. Not when you pass examination. Not when your mark gets published in the Official Gazette. After registration.
Placement
Superscript, upper-right corner of the mark. You don’t need to include it every single time the mark appears. First mention or most prominent placement is standard.
Your website, social media profiles, packaging, and marketing materials are the places that matter most. Be consistent.
The Mistake We Keep Seeing
Business owners slap ® on their brand the moment they file, thinking the application itself gives them the right. It doesn’t. 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. Completely avoidable.
Use TM freely. Use ® only after registration. No gray area. If you’re unsure where your application stands, a trademark attorney can answer that in five minutes, before it becomes a problem that takes months to unwind.