What are the benefits of marking?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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Marking a trademark provides certain procedural advantages to the owner when attempting to enforce a trademark. You cannot obtain lost profits and damages if you don’t use the notice. However, marking need not be made each and every time the trademark is used. It need only be used in a fair representative number of cases.

Benefits of Marking

Marking may be important if you have a weak, unregistered trademark and you are attempting to build secondary meaning in your trademark in order to get it registered. Similarly, if you have a very popular trademark which is in danger of becoming generic, make sure you mark it. A trademark attorney can give you guidelines to enable you to balance your desire for protection with your desire to have goods and services “uncluttered” by all sorts of legalese.

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Symbols Used for Marking

There are three specific marks companies can utilize to identify that their mark is unique. Using the correct mark is important, because claiming a registered trademark fraudulently can result in fines.

The first mark used to trademark goods is the “TM” symbol. The “TM” symbol is used for marks that are unregistered or that have been denied registration from the Federal Trademark Office. Marking can be used to promote or brand a specific good and can be a way of communicating your intent to establish a secondary meaning with your name.

The second mark used to trademark services is the “SM” symbol. The “SM” stands for unregistered service mark and is used to brand and promote services. Service marks include marks for law, doctors, and other professional offices as well as marks for service providers such as plumbers and handymen. Whenever there is not a specific good attached to the mark, the “SM” should be used.

The final mark used for officially registered goods and services is ®. When this symbol is displayed, it means that the mark is federally registered and approved. This mark may not be used if your application is pending or if you are appealing the trademark court’s decision. Unlike the © of copyright, where anyone can place it on their work regardless of registration, the ® is only permissive with federal approval.

Getting Help

For more information on marking or trademark law, or to submit your trademark for federal approval, contact an intellectual property attorney, trademark attorney, or business attorney or visit the website of the United States Patent and Trademark Office.

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