What’s the Difference Between the ™, the ©, and the ® Symbols?

You see them all the time, ™ © ®, but what do they mean?

Let’s start with the © symbol since it’s not like the other two. The © symbol is part of a statutory copyright notice pursuant to 17 U.S.C.§ 401(b)(1). Prior to March 1, 1989, copyright notices were required in the United States to maintain copyright protection. That changed when the U.S. joined the Berne Convention, after which the copyright notice became optional. Now, creation of a copyright is automatic at the time of authorship, and using the © together with the year your work was first published and the name of the copyright owner in the manner prescribed in the statute simply limits a potential copyright infringement defendant’s ability to claim innocent infringement in mitigation of statutory damages. The statute also offers alternatives to the © symbol. For example, instead of using the © symbol, you can comply with the statute by using the word “Copyright” or the abbreviation “Copr.”

It’s important to note that using the © symbol does not create copyrights in the work nor does it guarantee the right or ability to sue for copyright infringement. As described in my prior blog post What’s the Difference Between a Trademark, a Copyright, and a Patent?, copyrights are created the moment you set your original work of authorship to a fixed medium. Also, 17 U.S.C. § 411(a) requires that you register your copyrights with the U.S. Copyright Office before you can file an action for copyright infringement.

As for ™ and ®, both of those are trademark notice symbols, but only one of them is the subject of federal statutory rights. The ® symbol is a statutory trademark notice symbol informing members of the public that the mark is the subject of a U.S. trademark registration. More importantly, pursuant to 15 U.S.C. § 1111, the ® symbol (or one of its statutory alternatives) is required to be used as a prerequisite for entitlement to recover lost profits and/or damages in a trademark infringement case unless the defendant had actual notice of registration of the trademark. The statute also allows trademark owners to use the wording “Registered in U.S. Patent and Trademark Office” or “Reg. U.S. Pat. & Tm. Off.” to the ® symbol.

Meanwhile, the ™ symbol is also a commonly used trademark notice symbol. However, its use has little power. It is not a statutorily defined symbol and has little or no legal effect under federal law. That said, its use as a notice that you intend to claim common law rights in your trademark (as opposed to rights pursuant to a U.S. trademark registration) can have value. First, it can clarify that your use is intended to be trademark use, which in turn may help create and maintain your common law rights. Second, it gives potential infringers notice that you intend to defend your trademark rights. In short, it’s a symbol that even though you haven’t registered your trademark yet, you’re ready to protect it.

Understanding the distinctions between ™, ©, and ® is more than just a matter of symbols; it’s about knowing what legal rights you have, how those rights are created, and what steps are required to enforce them. Using the proper notice in the right context not only strengthens your position in the event of a dispute but also signals to others that you are serious about protecting your intellectual property.

For businesses and creators, the practical question is, what symbol do I use and when? As a general rule, it doesn’t cost anything to use the © symbol on your original words or the ™ symbol on your brand names and logos. So, those symbols should be used whenever possible to put others on notice that you intend to protect your rights. However, the strongest protection comes, in both copyright and trademark contexts, from federal registration; and from use of the ® symbol when your trademark is registered. Proper noticing and registration not only expand your rights but also preserve and unlock remedies that aren’t available with common law rights alone.

To ensure your brand is fully protected, contact Jimerson Birr.