As a trademark attorney, I almost always notice whether a company is using the federal registration symbol, ®. From time to time I look the mark up, and there is no registration. Sometimes there is not even an application.
That was the opening of the 2019 version of this post. The rule has not changed, but the mix-ups have gotten more creative.
You may use the ® symbol with a trademark only after the United States Patent and Trademark Office has issued a registration for that mark. Not after you file. Not after the application publishes. Not after an examining attorney issues a notice of allowance. After registration.
Using ® before that can get you into trouble. Knowing and willful misuse can be treated as an attempt to deceive consumers and can support a fraud theory. The USPTO has long said that honest confusion is more common than actual fraud. That is not a license to keep using it anyway.
What the Office still lists as “we hear this a lot”
TMEP §906.02, Improper Use of Registration Symbol, still recognizes the potential for misunderstandings in use of the registration symbol. Here are some common explanations that do not, by themselves, prove fraud:
- mixing up trademark notice with copyright notice (© can go on a work at first publication; ® cannot go on a mark until registration);
- the printer did not get instructions, or ignored them;
- believing that an Indiana state registration, or a foreign registration, authorizes the federal symbol;
- the registration covers only part of the brand block on the label;
- the registration covers other goods, not these goods;
- the registration expired or was cancelled and nobody took the ® off the packaging;
- another registered mark on the same label is what the symbol was supposed to refer to.
If your facts sound like one of those, fix the artwork. Do not panic.
TM, SM, and ® are not interchangeable
TM means “we claim this as a trademark.” You can use it on an unregistered mark, a pending application, or a common-law use. It is a claim, not a government seal.
SM is the same idea for services.
® means “the USPTO has registered this mark.” It is the only one of the three that requires a live federal registration.
Putting ® on a website footer because the logo “looks official” is how this post keeps getting rewritten.
State registrations do not get you a ®
Indiana will register a trademark through the Secretary of State. That filing has a place. It is not a federal registration. It does not authorize use of the federal symbol. It does not give you nationwide constructive notice. It does not mean the USPTO agrees the mark is clear.
A business can hold an Indiana registration, a pending federal application, and common-law rights in a couple of counties at the same time. Only the federal registration – once it issues – supports ®. The other two support TM or SM, if you want a notice symbol at all.
This blog has already watched local fights where a same-day state filing and a federal application showed up in the same week. Different offices. Different rights. One symbol.
The registration has a scope. The symbol has to follow it.
A registration is for particular goods or services in particular classes. If you are registered for “restaurant services” and you start selling branded hot sauce, the sauce is not registered because the restaurant is. Use TM on the sauce until that class is actually on a certificate.
The same problem shows up in the other direction. The word mark is registered. The new logo is not. Or the logo is registered and the tagline is not. Or the registration lapsed last year and the corrugated box still has ® molded into it.
Look at the certificate. Then look at the thing in the customer’s hand. If they do not match, take the ® off the thing in the customer’s hand.
Pending, allowed, published – still no ®
A serial number is not a registration number. A notice of publication is not a registration. A notice of allowance on an intent-to-use application is not a registration. You still have to file a statement of use, survive examination of that statement, and wait for the certificate.
Intent-to-use applicants are frequent offenders. The mark is sitting in a pitch deck with ® already applied because “we filed.” You filed. You have not registered.
What to do instead
Use TM or SM until the registration issues. When it issues, put ® next to the mark as it appears in the registration, on the goods or services listed in the registration. If you have a house mark registered and a product name that is not, only the house mark gets the ®.
If a registration dies – cancelled, expired, surrendered – the symbol comes off. That includes leftover packaging, the Google Business profile, the email signature, and the sign by the highway.
If you are not sure whether the registration covers a use, that is a clearance question, not a typesetting question. The 2026 fee edition of Should You Register Your Trademark? is the companion piece on whether to file. This one is only about the little R.
Stay tuned for the usual copyright and trademark docket notes.
Kenan L. Farrell, KLF Legal, Indianapolis
