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Answered 2011-09-13 02:11:55
Trademark QuestionIt has been said that, "If you have a registered mark, you should always include the circle R next to it, wherever it appears. The easiest way to do it is make the symbol part of your graphics, so it's always there regardless. If you fail to include the symbol and someone decides to copy your logo, they can always claim that you failed to identify the logo as a registered trademark, therefore releasing them of any infringement liability. If someone feels the mark is valuable, this could also be used as an argument to challenge the validity of the mark. The uspto wants registered marks identified, which is also why we pay all those attorney fees anyway, right?"

This is not completely accurate. You are never REQUIRED to use circle-R ?.

Trademark symbol ? usageNo, you do not need to put circle-R on your registered brand at all; it is completely optional. However, you have earned it, so why not take advantage of it? (Until you have a registration you may use TM or sm instead, again, only if you want to.) Use it once on a prominent brand placement and everyone will get the message: it's registered. The USPTO does not care whether you ever use the symbol, as long as you do not misuse it (i.e., on unregistered goods or services). Failure to use the symbol on your brand could not be used to excuse infringement; either the brand is registered or it's not, valid or it's not, and the symbol does not change any of that.

The registration itself (federal or state) serves as sufficient notice of your claim to the proprietary mark (whether it's a logo, slogan, color, etc), even if you never put a circle-R or TM next to it. The circle-R symbol serves as a reminder to the envious that you have achieved a federal registration.

As for a "challenge to the validity of your mark," that could happen to any mark, ? circle-R symbol or not, even before you file for a registration, but only for a limited time after a registration is issued.

Trademark symbol ? usage (added 2/12/2008)From McCarthy on TrademarksB. Giving "actual notice" to the prospective defendant.

Failure to use the statutory symbol does not create a defense: it is merely a limitation on remedies.[FN3] If notice of registration is not used, statutory damages are limited to those arising after the defendant received actual notification of the charge of infringement. "The only consequence of a holder failing to give such notice is that damages might start running later than if the notice had been given."[FN4] But failure to use the statutory notice has "no relevance whatsoever" to recovery of damages for violation of Lanham Act § 43(a).[FN5]

[FN3] United States v. Sung, 51 F.3d 92, 34 U.S.P.Q.2d 1407, 1409 (7th Cir. 1995).

[FN4] Bambu Sales, Inc. v. Sultana Crackers, Inc., 683 F. Supp. 899, 7 U.S.P.Q.2d 1177 (E.D.N.Y. 1988).

[FN5] Id. Accord Polo Fashions, Inc. v. J & W Enterprises, 786 F.2d 1156, 229 U.S.P.Q. 69, 71 (4th Cir. 1986) (unpublished decision) (failure to give statutory notice does not bar recovery of damages under Lanham Act § 43(a)).

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