Clients often ask about the symbols used to denote copyrights and trademarks, and when their use is appropriate. I will use my knowledge in trademark law and as an intellectual property lawyer to explain and expand on this topic.
What exactly is a Copyright?
“Copyright” is the exclusive right to use and reproduce an original and specific or particular expression or embodiment of an idea or concept, and the fixation of that idea or concept in some tangible form; for example, in a book, or a painting, or a movie or a song.
Creators or owners of original works denote the existence of copyright by using this symbol: ©, together with the date of first publication, and the name of the copyright holder.
Using the symbol © provides notice to the world of the existence of copyright. Under the Copyright Act of 1909, the use of © at the time of publication was a prerequisite to recovery of damages in an action for infringement of copyright; under the Copyright Reform Act of 1976, there is a five-year grace period from the date of first publication for application of the copyright notice.
A trademark or service mark is used to identify the source or provider of a good or a service. Owners of trademarks and service marks use the “R in a circle” symbol: ®, to denote the registration of a trademark or service mark in the United States Patent and Trademark Office (“USPTO”).
The trademark or service mark should always be capitalized because it is a proper name; think Xerox® or Google®. Use of the ® symbol is reserved to only those trademarks or service marks that are registered with the United States Patent and Trademark Office.
TM and SM Marks
You may often see the letters “TM” or “SM” applied to words or a graphic intended to brand or identify a good or service. These designations are often used to signal that the user of a mark claims rights in a mark, even though the mark may not be registered with the Patent and Trademark Office; for example, if an application is pending with the USPTO; or if the user claims rights under the laws of one or more states.
A mark used with the designations TM or SM should always be capitalized because, just in as with a registered mark, it is a proper name.