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.

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.

---

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.

---

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.

---

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.

---

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.

If you’re running a business that sells to US customers, or plans to, you can absolutely register a trademark with the USPTO from another country.

But there’s a requirement that trips up a lot of international applicants.

---

You Need a US-Licensed Attorney

Since August 2019, the USPTO has required all applicants domiciled outside the US to be represented by a US-licensed attorney. Not optional. You cannot file or maintain a trademark application on your own if you live abroad.

The rule exists because the USPTO saw a wave of fraudulent and inaccurate filings from foreign applicants, many submitted by unauthorized agents who didn’t understand US trademark law. The attorney requirement cleaned that up.

Doesn’t matter if you’re a sole proprietor or a corporation. If the business is based outside the US, you need US counsel.

---

How It Works for International Clients

At Indie Law, we work with clients around the world. The process is largely the same as for US-based clients, with a few extra considerations.

The USPTO requires your actual domicile address on the application. Not a PO box, not a registered agent. Your real address, whether that’s in Canada, the UK, Australia, or anywhere else.

International applicants also have additional filing options. If you already hold a trademark registration in your home country, you may be able to file in the US based on that foreign registration under Section 44(e). Or if you have a pending foreign application, Section 44(d) may apply. Both can streamline the process.

If you’re filing on a use-in-commerce basis, you need to show the mark is being used in connection with goods or services in the US. Selling to American customers through an e-commerce site counts. You don’t need a physical location here.

---

What About Protection in Multiple Countries?

A US trademark registration only protects you in the United States. If you’re doing business in multiple countries, you need protection in each one.

The Madrid Protocol lets you file a single international application through WIPO that designates multiple countries, including the US. It can be more cost-effective than filing separately in each country, though it has its own complexities.

The other option is filing directly in each country. Every country has its own trademark office, its own rules, its own fees.

---

Mistakes International Applicants Keep Making

Filing without a US attorney. We see this constantly. Someone files on their own, the application gets flagged, and now they need counsel to clean up the mess. Costs more than doing it right the first time.

Assuming a foreign trademark covers the US. It doesn’t. Trademark rights are territorial. A registration in the UK, Canada, or the EU gives you zero protection in the American market.

Using an online filing service instead of an actual attorney. Filing services aren’t law firms. They can submit paperwork. They can’t give legal advice, respond to office actions, or represent you in a dispute.

Living outside the US doesn’t stop you from getting a US trademark. You just need the right legal team handling the filing. The process is straightforward when it’s done properly from the start.

Fair question. Trademark pricing can be confusing, especially when some firms bundle everything together and others list fees separately without explaining what goes where.

---

Two Separate Costs

Every trademark application involves two distinct expenses.

There’s what you pay Indie Law for our work: the search, application prep, filing, and communication with the USPTO on your behalf. That’s our attorney fee.

Then there’s what the USPTO charges to process your application. That money goes to the federal government, not to us. That’s the government filing fee.

Two different line items. Two different purposes.

---

Our Packages Cover Legal Services

Indie Law’s flat-fee packages cover our attorney services. Government filing fees are separate and paid directly to the USPTO when we file.

We’re upfront about this because we don’t believe in hidden costs. When you work with us, you know exactly what our fees are and exactly what the USPTO fees are before anything gets filed.

As of 2025, the standard USPTO filing fee under multiple classes means $350 per class, per application.

---

Why We Don’t Bundle

Some trademark services, especially the low-cost online filing companies, advertise a single price and bury the government fee in the fine print. You think you’re paying $199 for a trademark, and then the total at checkout is $549.

Other firms wrap everything into one number, which sounds cleaner but often means you’re paying a premium for not seeing the breakdown.

We think you should know what you’re paying for. The government fee is the same regardless of which attorney you hire. Our job is to make sure your application is done right so that fee isn’t wasted.

---

Other Government Fees That Might Come Up

The initial filing fee isn’t the only one. Depending on how your application progresses, a few others may apply.

If you filed on an intent-to-use basis, there’s a fee when you submit your Statement of Use proving you’re using the mark in commerce. If you need more time before submitting that proof, each six-month extension has a fee.

After registration, you’ll have maintenance filings due between years 5 and 6, then every 10 years. Each of those has a government fee too.

We walk clients through all of this before they commit. No surprises.

If you’ve been burned by vague pricing or checkout-page surprises from other services, that’s exactly why we do things differently. You’ll always know the full cost before we file anything.

You filed your application. The USPTO is processing it. And then you spot another business using a name that looks uncomfortably close to yours.

First instinct: do something about it. But can you? Is a pending application enough?

Honest answer: it’s complicated. But you’re not powerless.

---

A Pending Application Isn’t a Registration

This is the critical distinction. A pending application does not give you the same rights as a federal registration. You can’t cite it in a federal infringement lawsuit the way you could cite a registered mark.

Registration gives you a legal presumption of ownership and the exclusive right to use the mark nationwide for your listed goods and services. A pending application doesn’t carry those presumptions. It’s a claim in progress.

That said, pending is not nothing.

---

Common Law Rights Still Exist

Even without registration, you have trademark rights based on your actual use of the mark in commerce. These are common law rights, and they exist the moment you start using a distinctive mark to identify your business.

They’re limited geographically. They typically only reach the areas where you’re doing business. But they’re real and they’re enforceable.

If someone in your market is using a confusingly similar mark and it’s causing actual confusion among customers, you may have grounds for a common law claim regardless of where your federal application stands.

---

What You Can Do Right Now

You don’t need a federal registration to send a cease and desist letter. If you have common law rights and you believe someone is infringing, a well-crafted letter from an attorney can be effective. A lot of disputes get resolved at this stage without ever seeing a courtroom.

You should also be documenting everything. Screenshots, dates, evidence of customer confusion. This record becomes critical if things escalate.

And watch the USPTO database. If the other party files their own application, you may be able to oppose it during the publication period. Your pending application and your earlier use in commerce can both support that opposition.

---

Your Filing Date Is Working for You

Even without full enforcement power, your pending application does something important. It locks in your priority date.

If you filed before the other party started using their mark, that earlier date gives you an advantage in any future dispute. In trademark law, being first matters. A lot.

This is one of the biggest reasons not to delay filing. Every day you wait is a day someone else could file first or start using a similar name.

---

Once Registration Comes Through

When your application is approved and the mark is registered, everything changes. You can file infringement lawsuits in federal court. You can use the registration as evidence of your exclusive right to the mark nationwide. You can seek statutory damages and attorney’s fees in cases of willful infringement. You can even record the trademark with US Customs to block infringing goods at the border.

Registration turns a regional common law claim into a nationwide, federally backed right. That’s a meaningful upgrade.

A pending application limits your options, but it doesn’t leave you defenseless. You still have common law rights. You can still send cease and desist letters. You can still oppose conflicting applications. And your filing date is quietly building your case in the background. But the sooner that registration comes through, the stronger your position gets. If you need to act now and your application is still pending, talk to a trademark attorney about the best approach for your specific situation.

You’ve picked your name, committed to the brand, paid the filing fees. And now an examining attorney at the USPTO is telling you there’s a problem.

It stings. But a rejection is one of the most common parts of the trademark process, and it’s almost never the end of the road.

---

What “Rejection” Actually Means

The USPTO doesn’t just stamp DENIED and move on. They send what’s called an office action, a letter explaining the specific reasons your application can’t be approved as submitted.

An office action is closer to a conversation than a final answer. The USPTO is telling you what the issues are and giving you a window to respond. Three months, typically.

---

The Most Common Reasons

Likelihood of confusion is the big one. The examining attorney found an existing mark that’s similar enough to yours, both in the mark itself and in the goods or services, that consumers might get confused. This doesn’t mean your mark is identical to someone else’s. It means the USPTO thinks it’s close enough to be a problem.

Descriptiveness is another frequent issue. If your mark describes what you sell rather than identifying your brand, the USPTO will push back. Trying to register “Fresh Juice” for a juice company is going to be an uphill battle.

Specimen problems come up too. The proof of use you submitted might not meet the USPTO’s requirements. Maybe it shows the mark used decoratively instead of as a source identifier. Maybe it doesn’t match what’s in the application.

And classification errors. Wrong class of goods or services, or a description that’s too vague.

---

Fighting Back

Many office actions are resolvable. A likelihood of confusion refusal can sometimes be overcome by showing the marks are different enough, or that the goods and services don’t actually overlap the way the examiner assumed. Descriptiveness refusals can be addressed by showing consumers associate the mark with your specific brand, not just the generic concept.

The response isn’t a casual email. It’s a legal argument that needs to be precise, well-supported, and tailored to the specific refusal. This is where having a trademark attorney changes the outcome. We handle office action responses at Indie Law, and we’ve seen applications that looked dead on arrival come through with the right arguments.

---

If the Response Doesn’t Work

You may get a final office action. Even then, you’re not out of options. You can appeal to the Trademark Trial and Appeal Board (TTAB), or in some cases, request reconsideration.

Appeals take time and cost more. But for the right mark, one that’s central to your business, it can be worth the fight.

---

The One Mistake That Actually Kills Applications

Ignoring the office action. If you don’t respond within six months, your application goes abandoned. Not rejected. Abandoned. All the time and money you spent filing is gone.

We’ve had clients come to us after missing that deadline. At that point, there’s very little anyone can do. The application is dead and you start over from scratch.

A rejection is a detour, not a dead end. Most office actions can be addressed, and plenty of initially refused applications end up registered. The key is responding strategically and on time. If you’ve received one, get an attorney involved quickly. That clock starts the moment the letter arrives.