Can I Use The ‘TM’ Symbol Without Registering My Trade Mark?

George Raptis

• 7 February 2022
• 23 February 2022
• 5 min read

Although it is not a legal requirement, you can use the TM symbol to identify your unregistered trade marks. A trade mark is a form of intellectual property that can distinguish your goods and services from those offered by your competitors. Whilst business owners typically associate trade marks with their logos, trade marks can also incorporate names, slogans, sounds and smells. To clarify when you can use the TM symbol, this article outlines the differences between the TM and reserved symbol ‘®’ as well as your rights concerning an unregistered trade mark.

Differences Between the ™ Symbol and the ® Symbol

Businesses often misunderstand the difference between the two symbols. To clarify the difference, anyone can use the TM symbol if they intend to claim a trade mark. This applies to business owners who:

• wish to assert their rights over their unregistered or common law trade mark;
• have applied to register their trade mark with IP Australia; or
• own a registered trade mark (even though you are more likely to use the reserved symbol ® in this instance).

By using the ™ symbol, you are essentially notifying the public that you consider your business name, logo, or slogan to be the brand for your goods and services. Consequently, the trade mark symbol can deter others from copying your brand or using similar brand features.

On the other hand, you can only use the reserved symbol ‘®’ if you own a registered trade mark. To obtain a registered trade mark, you must have IP Australia approve your application. 

You should note that it is an offence under the Trade Marks Act to use the reserved symbol in connection with a trade mark that is not registered. If you are caught misusing the symbol, you may be liable to pay a fine. In this sense, you should use the:

• ™ symbol in connection with unregistered trade marks; and
• ® symbol in connection with registered trade marks. 

How to Use the ™ Symbol

You might wish to use the TM symbol when using your business name, logo or slogan. This could be particularly the case if you are advertising your business or wish to brand your products. Whilst there are no legal requirements regarding where you should place the trade mark symbol, you should display it in an area that the public can clearly see. Typically, business owners will place the symbol on the upper right-hand of their business name, logo or slogan.

Enforcing Your Rights to an Unregistered Trade Mark

In reality, using the trade mark symbol alone may not prevent competitors from copying or misusing your brand. In the instance where someone has passed off their goods and services as your business’ or engaged in misleading or deceptive conduct, you may be able to enforce your rights concerning your unregistered trade mark. 

In order to successfully pursue a claim for passing off, you must prove that:

• your unregistered trade mark has established a strong reputation in the market;
• the wrongdoer has made a misrepresentation; and
• you have suffered or are likely to suffer damage because of the misrepresentation.

Alternatively, if someone misuses your unregistered trade mark, this causes or is likely to confuse consumers in the market. In that case, you could pursue a claim under Australian Consumer Law. Generally, a person or business will mislead or deceive customers if they claim that your business has endorsed their goods or services or that your business produces the goods or services they sell. 

For example, if Apple advertised that Samsung had endorsed their new smartphone product, Apple would likely breach Australian Consumer Law.

Should I Register My Trade Mark?

As you might have gathered, enforcing your rights to an unregistered trade mark is no simple feat. This is because trade mark owners often have to jump additional hurdles to prove that:

• consumers sufficiently recognise the trade mark as their business brand; and
• their business’ goods and services have gained a sufficient reputation in the market. 

However, once you register a trade mark, you enjoy extensive protections under the Trade Marks Act. Namely, you gain the exclusive right to use, licence and sell your trade mark. This means that you can legally prevent a person or business from copying or misusing your trade mark.

To register a trade mark, you must apply with IP Australia. If your application is successful, you then enjoy 10 years of trade mark protection with the option to renew your registration indefinitely.

Key Takeaways

If you intend to claim a trade mark over your brand, you can use the ™ symbol. This applies to business owners who use unregistered trade marks or are in the process of applying for trade mark registration. Whilst the law does not require you to use the ™ symbol in connection with your unregistered trade mark, it can deter others from copying or misusing your distinguishable brand features. 

If you are considering registering your trade mark, our experienced trade mark lawyers would be happy to assist. Call us on 1300 657 423 or complete the form on this page.

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