A lot of new businesses outsource their brand kits, trademark usage manuals and logos to third -parties for promotions. But at Nicomedia IP our legal experts come across large number of brand owners who are frequently unaware with the significance of IP symbols. Tiny symbols on your brand slogan such as TM, ®, SM or are key to establish your market presence.  Are you sure you are using the correct ones. Let us take a look

What is a Trademark?

A trademark is a sign that is protected by intellectual property law which helps distinguish goods or services of one enterprise from another. A trademark can be alpha-numeric letters or words or  drawings, three-dimensional character or shapes etc.; that have distinguishing features and are distinct from existing registered trademarked entities.

Difference between Trademark and Certification Marks?

Certification Marks are a compliance tool. These marks are names, colours or symbols that indicate that the trademarked brand follows compliances to a set of market standards. While, trademark is owned by an enterprise or an individual, certification marks are owned by trade institutions that certify a brand demonstrating assurance of its quality methods, worker rights, and cruelty free materials etc.

India:

• TM (Trademark):  The TM symbol is used for brands who have been incorporated into the trademark registry under the Indian Trademarks Act, 1999 and it serves as a warning for infringers and counterfeiters . False usage or mis-representation invites violation penalties.
• SM (Service Mark): SM is used to denote services. It is like a trademark, but the symbol distinguishes services of one company from another provider. SM is usually applied with trademark applications and applicable for category classes 35 to 45 as per the Trademark Act in India.
• ® (Registered): The R symbol can be alternately used with the TM/ SM symbol as it signifies that the trademark is registered and any infringement of brand rights will be acknowledged under the Trademark laws.
• © (Copyright): The © symbol stands for copyright and used for artistic and creative endeavours such as, artwork, photography, cinema, literary works, etc.; published and registered under the name of the creator. As India is a member of the Berne Convention, use of the © symbol is a statutory requirement to claim copyright protection. Moreover, any use of copyright works without the © symbol amounts to infringements of rights and is an invitation to a lawsuit.

Germany:

• TM (Trademark) and ®  (Registered) : In Germany TM and ® symbols are governed by the Trade Mark Law Modernisation Act (Markenrechtsmodernisierungsgesetz) and omission of ® symbol does not disadvantage an already existent trade mark owner in case of infringement situation. However, it is a statutory requirement to include a TM or ® symbol, only next to registered trademarks, registered with the office of DPMA (Deutsches Patent– und Markenamt) in Germany. Since market laws are governed under German Unfair Competition Law usage of TM or ® symbol by an unregistered brand, amounts to a false representation and is an act of misleading commercial practices under section 5 of the German Act Against Unfair Competition (UWG).
• SM (EN-Service Mark /DE- Dienstleistungsmarke): SM is not a common symbol in Germany and quite like in India, registration of SM is required to be made next to a service brand that already has a pre-existing trademark registration made with the German DPMA. Moreover, it is important to be aware that Germany assesses both DPMA and EU-Trademark registration (EUTM); equally. If your brand is registered with the EUTM it will be considered as a valid trade mark registration.
• © (Copyright): While creative works of literature, science, or art are protected under the German Copyright Act (Urheberrechtsgesetz – UrhG) from commercial exploitation, according to the European Union laws, it is not mandatory to use the © symbol. Besides, the symbol of copyright signifies the scope of protection for creative published works under the Section 2, Copyright Act , it excludes industrial property rights from copyright protection. Hence, industrial goods with economic use cannot use the © symbol.

United Kingdom:

• • TM (Trademark): The trademark (TM) symbol has no statutory significance in the UK. According to UK IPO legislation any business, registered or unregistered can use the TM symbol with no limitations.
  • ®  (Registered): Conversely, the UK Trademarks Act of 1994 considers the ® symbol as more important and mandates it be used by trademark owners of registered brands. Moreover, it is a criminal offence using the ® symbol by an unregistered brand and amounts to false representation under section 95 of the Trade Marks Act 1994.
  • SM (Service Mark): UK IP laws do not distinguish between trademarks and service marks. Therefore, SM symbols are neither mandatory, nor required to indicate difference between products from services.
  • © (Copyright) and ℗ (Phonogram): The UK IPO distinguishes between creative works, to grant IP protection. According to UK IPO the symbol of © can be applied for copyright protection to most types of creatives and artistic works; except audio works . On the contrary the ℗ (Phonogram) symbol are referred as copyright protection for works of audio nature. That is sound recording or phonorecords etc.

Download the infographic guide to IP symbols.

If you would like to register your brand rights domestically or internationally then get in touch with our legal experts who will help you keep your IP rights safe and assist you with legal precautions.

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