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As a trademark attorney, I almost always notice whether a company is using the federal trademark registration symbol, ®. From time to time, I’ll check out their registration on the United States Patent and Trademark Office (USPTO) database, only to find that the company doesn’t actually have a federal registration, and sometimes not even an application.
It’s important to know that the federal registration symbol may not be used with trademarks until they are actually registered with the USPTO. Using the ® without a registration can get you into trouble. Knowing and willful misuse of the federal registration symbol can be considered an attempt to deceive or mislead consumers and subject you to potential fraud claims.
However, the USPTO acknowledges that misunderstandings about use of the federal registration symbols are more frequent than occurrences of actual fraudulent intent. Common reasons for improper use of the federal registration symbol that do not indicate fraud are:
- Mistake as to the requirements for giving notice (confusion often occurs between notice of trademark registration, which may not be given until after registration, and notice of claim of copyright, which must be given before publication by placing the notice © on material when it is first published);
- Inadvertence in not giving instructions (or adequate instructions) to the printer, or misunderstanding or voluntary action by the printer;
- The mistaken belief that registration in a state or foreign country gives a right to use the registration symbol
- Registration of a portion of the trademark
- Registration of the trademark for other goods
- A recently expired or cancelled registration of the subject trademark
- Another trademark to which the symbol relates on the same label
See TMEP §906.02.
Contact a trademark attorney if you have questions about the proper use of the federal trademark registration symbol.
