A trademark is a distinctive symbol, word, phrase, design, or combination that legally identifies and distinguishes the source of goods or services from those of others. It serves as a unique identifier for businesses, helping consumers recognize and associate products or services with a specific brand.
And while trademarks and registered trademarks have similar names, they have slightly different characteristics and implications for businesses. Let’s take a closer look at the difference between a registered trademark and a trademark and the rights and protections each offers its owner.
Trademark v. Registered Trademark: the Basics
In its basic form, a trademark offers informal protection for symbols, names, or logos associated with a brand. However, it comes with limitations such as a lack of nationwide coverage and potential challenges in enforcement.
On the other hand, a registered trademark requires undergoing a formal registration process and provides a comprehensive set of benefits, including nationwide protection and a legal presumption of ownership. The key differences lie in legal status, scope of protection, and the requirement for use in commerce. While both offer means of enforcement, litigation processes and damages may vary.
What Is the Difference Between R and TM?
When you see trademarks next to brand names or logos, you often see one of two trademark symbols, an R or a ™. Each letter represents the type of legal rights the mark is protected by. A mark followed by a TM (™) indicates a common law trademark, while R (®) represents the more formal registered trademark.
The difference between a TM and R is that R represents registration with the U.S. Patent and Trademark Office and more robust legal rights regarding protection. Enforcing common law trademark rights requires more evidence and higher litigation costs.
Ensuring that a business has properly registered its trademark can make a big difference in the ease and cost of enforcing ownership rights.
Common Law Trademarks
Under common law, trademark rights begin when the owner begins using the mark in commerce in a particular geographical area. Unlike registered trademarks, common law trademarks can be informally established through consistent use in commerce.
The informal nature of trademarks allows companies to begin protecting their brand elements without undergoing a formal registration process, although this informal protection has its limitations. The elements to establish protection this way require:
- A unique mark. To receive trademark protection, the mark must be a distinctive and individual one that sets a particular brand apart from others in the marketplace. This can be a symbol, name, logo, slogan, or design that is not generic or commonly used in the industry.
- Use in commerce. This involves actively employing the chosen mark in connection with the sale or offering of goods or services in the marketplace. To claim trademark rights, the owner must use the mark in a real commercial context by applying the mark to goods, packaging, and labels, or using it in advertising or promotional materials.
A common law trademark’s owner is responsible for “policing” its use, which means keeping track of whether anyone else is using it. Failing to do so may lead to a trademark’s owner losing rights to infringement protection.
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Unlike a common law trademark, a registered trademark is a mark that has undergone a formal application and approval process with an intellectual property office, such as the United States Patent and Trademark Office or a relevant state agency.
Once properly registered, a registered trademark’s owner has exclusive rights to use the trademark across the entire jurisdiction of the registering authority. In addition, registration creates a legal presumption of ownership and validity of the trademark.
In case of legal disputes, the burden of proof shifts to the party challenging the trademark, making it easier for the owner to assert their rights. Registered trademark owners also have access to enhanced legal remedies and damages in case of infringement.
This includes the ability to recover statutory damages and attorney fees. Overall, enforcing a trademark owner’s rights becomes more straightforward when the mark is registered.
Protecting Trademarks Created by Third Parties
In some cases, a business may hire another individual or entity to create a trademark. In this case, the business should take specific steps to ensure its ownership of the trademark through clear communication, documentation, and detailed legal agreements.
A well-drafted contract should explicitly outline the scope of work, the purpose of the design, and the transfer of intellectual property rights. Specify that the created trademark is a “work made for hire” or that the rights are assigned to the business. Clearly state in the contract that the business will be the owner of the trademark and all associated intellectual property rights. Specify the conditions under which the rights will be transferred, including full payment for the design services.
If you have questions about registering or enforcing a trademark, trust the team at BrewerLong. Our intellectual property attorneys in Orlando have over a decade of experience helping clients in Florida and nationwide. Call our office to schedule a consultation or fill out our online contact form to get started today.
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