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® vs. ™: Which trademark symbol should I use and when?

Dennemeyer & Associates / October 4, 2019
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Your business has successfully registered trademarks in your home country. Congratulations! That is an excellent step towards making sure that your company can gain a strong position in your industry. You might have some stiff competition, but you also have a brand that consumers will associate with your product or service.

Handling an increasing number of sales is an excellent problem to have, but it could pose some interesting issues for firms that are trying to manage their trademark rights, especially when those sales are based in other countries. Trademark law varies from nation to nation, and staying on the right side of the rules takes some research. Even how you mark your trademarks on product packaging can get you into trouble with foreign regulators if you are not careful.

Markings of a trademark status 

First, many countries recognize two different types of markings that denote trademark status: ® and ™. The "®" indicates that a trademark has been registered with a country's trademark office, and the "™" means that the user is claiming rights to the brand without registering the mark. A "®" mark constitutes a claim of having stronger trademark rights than a "™" mark, which only claims use of a certain sign, independent of actual registration.

Nevertheless, how these markings are used in different countries means that companies cannot take a "one size fits all" approach to packaging and labeling.

In the United States, trademark owners are compelled to use ® designation on their product packaging or else they might miss out on some of the benefits of trademark ownership, such as claims to profit recovery or damages in an infringement case. However, in France, there is no similar requirement to include the ® designation on packaging and labels. In fact, throughout most of Europe, the use of the ® designation in association with a trademark that is not registered within that country may run the risk of violating rules on misleading advertisements.

While most countries recognize the ® designation, the ™ is mostly a product of the English common-law system. This means that ™ is often seen on products in the United States and Australia but does not hold much weight in many countries around the world. Outside of common-law nations, consumers do not typically associate the ™ mark with any trademark rights. In the United States, ™ can be added on a product label even if the mark is not registered, but courts in Germany have held that ™ must be used in association with a registered trademark.

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Trademark law varies from nation to nation and, if you are not careful, the way you mark your trademarks on product packaging can get you into trouble with foreign regulators.

Other trademark rules

If all of this is not confusing enough for you, here are some other trademark rules to consider. In the United Kingdom, businesses can use the ® mark or "RTM" lettering to indicate that a trademark has been registered, even if that mark is not registered in the UK. If you do not use a ® mark in Canada or Spain, your trademark is still enforceable, but you lose those rights if you do not include the ® mark on products sold in Mexico, Chile, Peru or the Philippines. What if you made an honest mistake and added a ® mark on products shipped to countries where the trademark is not registered? In Japan or India, such a mistake could lead to fines or even imprisonment.

Trademark owners have some options to handle issues with foreign rule regimes, although there are drawbacks to them. If your packaging or labeling includes a ® mark and you want to ship to a country where the mark is registered, you could use a sticker over the mark to block it. Alternatively, you could avoid including ® or ™ marks on your packaging, but then you risk losing trademark rights in certain countries.

Conclusion

A proper trademark management strategy for foreign sales starts with an assessment of the international markets that are most important for increasing sales of your product. Then, consult with a trademark attorney with knowledge of the foreign markets you want to enter. Here at Dennemeyer, our global team has expert knowledge of trademark regulations across the world, allowing you to keep your focus on building your business.

Let's talk!

Posted by Dennemeyer & Associates

Dennemeyer & Associates is a leading IP law firm with a genuine international span, based in Luxembourg and founded in 1962. We maintain fourteen offices in thirteen countries (Luxembourg, Germany, Poland, Romania, Croatia, France, United States of America, United Arab Emirates, Japan, Australia, Brazil, the Russian Federation and South Africa).

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