Can You Use the ® Symbol Before Your Trademark Is Registered?
Clients frequently ask right before or after filing a trademark application if they can start using the ® symbol? The answer is no, not yet. The reason is worth understanding, because using it too early can actually cause problems down the road.
The ® Symbol Means One Specific Thing
Trademark law reserves the ® symbol for marks that the USPTO has actually registered. Filing an application doesn’t actually give you the right to use it, and neither does advancing your application through the review and prosecution process. You earn that right only on the day your registration certificate issues.
Until then, use the superscripted TM (for trademarks on goods) or SM (for service marks) instead. Those symbols don’t require any registration at all. You can use them the moment you launch your brand in commerce. In fact, many businesses use them for years while building trademark rights informally, long before ever filing an application.
In contrast, the ® symbol tells the public that the government has reviewed and registered your rights. Using it before that has occurred misstates your legal status, even if you didn’t intend to.
Practical Tip: Once you believe you are using a word, phrase, or symbol as a trademark, use the TM symbol on it.
What Happens If You Use It Too Soon
If your trademark application includes a specimen (the sample showing how you use the trademark in the marketplace) and that specimen displays a ® symbol next to a mark that isn’t registered yet, the Trademark Office will catch it. Trademark Examiners are trained to check any ® symbol in your materials against the registration records. They also look to see if the mark is registered outside the US. If the mark doesn’t match a registration, you’ll receive an official notice explaining that USPTO records don’t show your mark as registered, and that you can’t use the symbol until they do.
However, this notice by itself, doesn’t reject your application. It is just an advisory. I haven’t received one in a long time, but my recollection is that it does not even require a response. So it won’t actually hurt your chances of registering the mark. Companies often make this mistake because they already have registered trademarks, but then they reuse similar packaging or marketing language for a new product line before that new mark clears the registration process. Or they had a mark that was previously registered, let it expire or cancel, and then filed to re-register the mark. Or, they mistakenly thought that filing of the application gave them the right to use the symbol. Usually, an honest mistake or long habit is the reason someone uses the ® symbol incorrectly, not any intent to overstate or deceive.
When It Becomes a Bigger Deal
A more serious version of this issue does exist. If a business keeps using the ® symbol on an unregistered mark after the Office has told it to stop, or if the pattern looks less like an honest mistake and more like a deliberate attempt to convince the public that an unregistered mark is registered, that crosses into different territory. It can raise questions about the mark’s validity down the line and give competitors an opening to challenge it later.
That’s the exception, though, not the rule. Frequently, someone simply used the symbol a little too early, and a quick update to the marketing materials fixes it.
Summary
It’s tempting to want to use the ® symbol early, especially once you’ve filed. But you earn that symbol at one specific moment: after your registration actually issues. Until then, use the TM or SM symbols to identify your brand. Using them is the safer, accurate choice. If you’re not sure where your application stands or whether your materials need updating, take steps to determine that now, before the issue turns into a bigger one.