A client recently asked me a question regarding the use of the TM symbol on products, and while it might sound like there’s a simple answer, it isn’t as simple as you might think. Here’s what they asked:
“Just wondering whether it’s beneficial for me to have TM on my packaging? I’ve noticed a lot of big brands don’t have TM but are in actual fact trademarked.”
All traders have a right to use the ™ symbol alongside the brand they apply to register or use in connection with the product they offer to the public from the first day that product hits the market (assuming that they are not aware that use of the brand will impinge on the rights of others). I use the term product in this answer however the same rules apply to services but the way the brand is used for services is a topic for another article.
The ™ symbol is not well understood by the general public, with most people thinking it denotes that the brand is a registered brand. That’s not correct, but, it can be an unintended advantage if most people think that’s the case. Note that the ® symbol can only be used on a product when that brand is officially registered and only used on products covered by the registration and offered into the same country in which it is registered. While most brand users know the difference between the ™ symbol and the ® symbol, the public and some competitors don’t always have the same understanding. However, the use of the ™ symbol none-the-less puts everyone on notice that there is a brand that is considered by its user/owner to be the brand for the respective product. That is generally a good thing and can be very important when claiming common law rights (those rights which accrue when the brand is not registered), since it is clear to the reviewing body that the user/owner knew that they were using the ™ symbol intentionally to signify there was a brand being used on the product distinct from any descriptive aspect of their marketing of that product (proper use of brands is a topic for a future article).
The more well-known the brand, the less the owner needs to tell everyone it is a brand (as long as the owner continues to use it as a brand). It could be that those owners want to avoid the possibility that either of the symbols will spoil the aesthetic of the package or the carefully crafted advertising script, and thus the owners are willing to forego any advantage the symbol may provide. That’s an easier choice for a well-known brand and remains a hard choice for the lesser-known brand owner. For example, L’Oréal is a house brand and there are at least 39 sub-brands including Guy Laroche, Redken, Yves Saint Laurent, Heratars, Diesel, Maybelline, and many more. The ™ symbol may not be used with those brands on products bearing the house brand or the sub-brands.
My recommendation would be to use the ™ symbol on the product, its packaging and any promotional material. It is also useful to use it on invoices for the sale of the product. A fall-back is to mention that the brand is a trade mark of the owner somewhere on the packaging or use directions, and to at least use the ™ symbol on the promotional web page and on all advertising for the sale of the product. If you start using the ™ symbol, there’s no doubt your brand will be better off.
