TM and R symbols: what ™ and ® mean and when you may use them

TM symbol, R symbol and copyright: the symbols at a glance

The small symbols after product and company names look similar but have different meanings. The German Patent and Trade Mark Office (Deutsches Patent- und Markenamt, DPMA) explains them in its questions about trade marks as follows: the ® indicates a protected, registered trade mark. TM and SM are used in the US legal system for trade marks used in the course of trade, even if they are not registered or not eligible for protection.

Symbol	Stands for	Meaning in Germany	Mandatory?
™	Trademark (trade mark)	no meaning laid down by law; indicates that someone claims a sign as a trade mark	no
®	registered	indicates a registered trade mark	no
℠	Service Mark (trade mark for services)	US notice for trade marks for services, rare in Germany	no
©	Copyright (Urheberrecht)	indicates copyright; has nothing to do with trade marks	no

None of the symbols creates rights. Whether you have a trade mark is decided solely by the Trade Mark Act (Markengesetz). How to secure your name, logo or slogan legally is explained in the guide Trade mark protection.

What does the TM symbol mean?

TM is the abbreviation of “trademark”, the English word for Marke. The superscript ™ shows that the user regards this word, logo or slogan as their trade mark. The symbol does not say whether the trade mark is registered anywhere. In the US legal system, it is customary precisely for trade marks that are (not yet) registered. For trade marks that only identify services, there is the variant ℠ for “service mark”.

In Germany, no statute recognises the TM symbol. It therefore has no legal effect. Here, trade mark protection arises in three ways (Sec. 4 MarkenG):

1. through registration in the register of the DPMA,
2. through use in the course of trade, if the sign has acquired distinctiveness as a trade mark among the relevant public,
3. through well-known status.

Registration is the normal case. A new sign generally does not acquire distinctiveness through use quickly, and only very few trade marks are well known. So anyone who puts a TM after their product name without having applied for the trade mark has gained no additional protection.

What does the R symbol ® (R in a circle) mean?

The R in a circle stands for “registered” or “registered trademark”. According to the case law of the Federal Court of Justice (Bundesgerichtshof, BGH), the public takes the addition ® as an indication that a trade mark with exactly this content exists (BGH, judgment of 10 January 2013, I ZR 84/09, PROTI II, para. 35). The Federal Patent Court (Bundespatentgericht, BPatG) puts it this way: the public expects the sign to be registered as a trade mark for the user or the trade mark owner to have granted them a licence (BPatG, order of 7 October 2013, 30 W (pat) 106/11, para. 36).

Why the ® is so widespread: In the USA, the symbol has tangible consequences. The owner of a trade mark registered with the US trade mark office can give notice of the registration, for example with ®. If they fail to do so, they obtain neither an account of profits nor damages in infringement proceedings, unless the infringer actually knew of the registration (15 U.S.C. § 1111).

This rule does not exist in Germany. The Trade Mark Act does not require a ® on registered trade marks. It links the claim for damages to intent or negligence on the part of the infringer (Sec. 14 (6) MarkenG), not to a notice of the registration. Here, the ® is therefore voluntary. It can be useful because it shows imitators that you have a registered trade mark. It does not create any protection of its own.

TM and R: the difference

The most important difference: the ® asserts a registration, the TM only a claim. This determines when you can use which symbol.

Stage of your trade mark	TM symbol ™	R symbol ®
Nothing applied for yet	not advisable, risk of misleading	no, misleading
Applied for, not yet registered	courts divided, justifiable but with risk	not advisable, only from registration
Registered	possible, but the ® is clearer	yes, in the registered form and for the registered goods and services
Protection expired or trade mark cancelled	remove	remove
Registered abroad only	risk of misleading	risk of misleading if the public expects protection in Germany

When may you use the R symbol?

There are no statutory rules on where exactly the ® must appear (BPatG, 30 W (pat) 106/11, para. 36). The standard is the prohibition of misleading practices: the symbol must not suggest trade mark protection that does not exist in that form. Check these six points before every use:

1. Is the trade mark registered? What counts is the status in the register, not the date of your application. The registration is published (Sec. 41 (2) MarkenG); you can find the current status in DPMAregister.
2. Is it registered for you, or do you have a licence? As a licensee, you may refer to the owner's trade mark: with the ®, the public expects a registration for the user or a licence from the trade mark owner (BPatG, 30 W (pat) 106/11, para. 36).
3. Are you using it in the registered form? If a combined word and figurative mark (Wort-Bild-Marke) is registered, the ® refers to the whole sign. The BGH regarded a trade mark as deceptive in which the ® was assigned only to one element that did not enjoy trade mark protection of its own (BGH, order of 17 October 2013, I ZB 11/13, grill meister, headnote 2).
4. Are you advertising the registered goods or services? A trade mark only protects what it is registered for. A ® on an offer outside the list can therefore be deceptive.
5. Does the trade mark apply where you advertise? A DPMA trade mark has effect in Germany. An EU trade mark of the European Union Intellectual Property Office (EUIPO) has effect in all EU member states. If you advertise internationally, you should make clear where protection exists.
6. Is the protection still running? The term of protection is ten years from the filing date (Sec. 47 (1) MarkenG). Without renewal, the trade mark is cancelled (Sec. 47 (8) MarkenG), and the ® has to go. We handle the renewal as trade mark renewal from €169 net plus VAT and official fees.

Only if all six answers are “yes” do you use the ®.

May you use the ® right after filing the application?

We advise against it. With the application, you have a right to registration (Sec. 33 (2) MarkenG), but not yet a registered trade mark. The public understands the ® as an indication of a registration (DPMA; BGH, PROTI II, para. 35). Until registration, the office can still refuse the application on absolute grounds for refusal (Sec. 37 (1) MarkenG).

The position is not entirely uniform. The Federal Patent Court did not regard a ® within a sign applied for as deceptive merely because the trade mark had not yet been registered: with registration, the notice would become accurate (BPatG, order of 21 January 2013, 27 W (pat) 553/12, para. 47). However, that case concerned the question of whether the sign itself was eligible for registration, not advertising with the ® during the proceedings. The DPMA states as the normal case that, where the trade mark is registered, the application proceedings are usually completed within a few months; at present, however, it points to longer processing times. Waiting that long is the safe option.

From registration, you may use the ®, even while owners of earlier rights can still file an opposition for three months (Sec. 42 (1) MarkenG). If your trade mark is cancelled afterwards, you remove the ®.

May you use the TM symbol in Germany?

No statute prohibits the TM symbol. What matters is how your customers understand it. If they know the TM from US usage, they read it as a trade mark claim. If they equate it with the ®, they expect a registered trade mark.

The courts have taken different views. One regional court (Landgericht) treated the TM on a trade mark that had only been applied for like a ® and found it misleading. Another regional court held the TM not to be misleading: most customers in Germany associate nothing with it, and those who know it know that it is not a quality mark. Later, the Higher Regional Court of Berlin (Kammergericht) found nothing misleading in the TM on a trade mark applied for but not yet registered: those who know the symbol understand it to mean that registration has been applied for. We have not found a decision of the Federal Court of Justice on the TM symbol.

In practice, this means:

• Without an application: Leave out the TM. It gives you no protection and can create the impression of a right you do not have.
• After the application: The TM is justifiable if the application concerns exactly this sign for the goods or services advertised. A residual risk remains.
• After registration: You can then use the clearer ® straight away.

Typical mistakes with ® and TM

The examples with fictitious businesses show where the risk of misleading lies. In each individual case, the overall impression decides.

® on the word element of a combined word and figurative mark. The Nordlicht roastery has registered its logo with lettering and lighthouse as a combined word and figurative mark, but not the word “Nordlicht” on its own. If it writes “Nordlicht®” in running text, the ® suggests a word mark that does not exist. On assigning the ® to an element that is not separately protected, the BGH affirmed a risk of deception in registration proceedings (grill meister, paras. 24 to 26). The Federal Patent Court also sees this as a deception to be prevented under the UWG, even if the element is eligible for protection on its own but is not registered (BPatG, 27 W (pat) 553/12, para. 49).

® on the company name. Muster Digital GmbH is entered in the commercial register and therefore puts “Muster Digital®” on its website. However, entering the company name in the commercial register is not a trade mark registration. What the company name (Firma) is and what it protects is explained in the glossary entry on the company name.

® for the wrong offer. The trade mark “Sonnenkorn” is registered for bakery products. If the owner opens a café and advertises “Café Sonnenkorn®”, there is no protection for serving guests if this service is not in the list.

® after the trade mark has expired. The trade mark was not renewed. With the cancellation (Sec. 47 (8) MarkenG), the notice on packaging and website is no longer accurate.

® with a trade mark from the USA only. A retailer has registered its trade mark with the US trade mark office and also uses the ® on its German website. If German customers expect protection in Germany, this can be misleading.

Cease-and-desist letter over ® or TM: what you face

Incorrect trade mark labelling is a breach of competition law. A practice is misleading if it contains untrue information or information likely to deceive about the trader's rights, expressly including intellectual property rights (Sec. 5 (2) no. 3 UWG). The Federal Court of Justice considers it obvious that a business creating the false impression of holding a right in a sign expects to gain an advantage over customers and competitors, and that such an untrue advertising claim must be stopped (BGH, grill meister, para. 27, with reference to its judgment of 26 February 2009, I ZR 219/06, Thermoroll).

Who may send a cease-and-desist letter (Sec. 8 (3) UWG):

• competitors who sell or purchase goods or services to a not insignificant extent and not just occasionally,
• registered qualified trade associations,
• qualified consumer associations,
• chambers of industry and commerce, crafts organisations and other professional bodies.

What they can demand:

• removal and injunctive relief (Sec. 8 (1) UWG), usually through a cease-and-desist declaration with a contractual penalty (Sec. 13 (1) UWG),
• reimbursement of the necessary costs of a justified cease-and-desist letter (Sec. 13 (3) UWG),
• damages, if a competitor proves a loss and you acted intentionally or negligently (Sec. 9 (1) UWG).

The claims become time-barred six months after they arise and the creditor obtains knowledge or is unaware through gross negligence (Sec. 11 (1) and (2) UWG).

What you should do after receiving a cease-and-desist letter:

• Note the deadline and do not let it pass.
• Do not sign the pre-drafted cease-and-desist declaration without checking it. It binds you permanently and comes with a contractual penalty.
• Check whether the letter contains the mandatory information: name of the sender, entitlement to the claim, amount and calculation of the costs, the specific infringement (Sec. 13 (2) UWG).
• Print out the register status of your trade mark and secure evidence of the passage complained about.
• If the cease-and-desist letter is unjustified or defective, you may in certain circumstances be able to claim reimbursement of your own lawyer's fees (Sec. 13 (5) UWG).

Have the cease-and-desist letter checked by a lawyer before you respond. With legal advice from Recht 24/7, you receive a written assessment within 24 hours for a fixed price of €169 including VAT, follow-up questions included. Any subsequent representation comes at a fixed price agreed in advance. Other typical risks of cease-and-desist letters online are covered in the guide Legal texts for online shops.

Copyright symbol ©: not a trade mark symbol

The © indicates copyright, for example in texts, photos, graphics or software, and has nothing to do with trade marks. In Germany, copyright arises without registration and without a symbol: personal intellectual creations are protected (Sec. 2 (2) UrhG), and the author is the creator of the work (Sec. 7 UrhG). The right expires 70 years after the author's death (Sec. 64 UrhG).

In Germany, the © is therefore merely a notice. The Copyright Act (Urheberrechtsgesetz) does not attach a statutory presumption to the ©, but to who is named as the author on the copies in the usual manner (Sec. 10 (1) UrhG).

With a logo, the rights can overlap. According to the DPMA, a logo can be protected as a trade mark and, in parallel, as a design. You can register the design with us via Register a design.

How to type ™ and ® on a keyboard

If you are only looking for the symbol, here are the common methods.

Symbol	Unicode	HTML code	Windows (hold Alt, type the digits on the numeric keypad)
™	U+2122	™	Alt + 0153
®	U+00AE	®	Alt + 0174
©	U+00A9	©	Alt + 0169
℠	U+2120	℠	no Alt code in Windows code page 1252

On a Mac, you will find all symbols in the Character Viewer (“Edit” menu, item “Emoji & Symbols”); on a smartphone, usually in the symbol view of the keyboard. Typographically, the symbol comes directly after the trade mark, usually in superscript. There is no rule on this.

From TM to ®: how your sign becomes a registered trade mark

If you want to use the ® without risk, you need a registered trade mark. The route at the DPMA:

1. Search for earlier rights. On application, the office only examines absolute grounds for refusal (Sec. 37 (1), Sec. 8 MarkenG), not whether a similar earlier trade mark already exists. Its owners can file an opposition later (Sec. 42 MarkenG).
2. Application. It contains the request, details of the applicant, the representation of the trade mark and the list of goods and services (Sec. 32 (2) MarkenG). The filing date secures your priority (Zeitrang) (Sec. 33 (1), Sec. 6 (2) MarkenG).
3. Official fee. €290 if filed electronically, €300 on paper, each including up to three classes; from the fourth class, €100 per class (PatKostG, schedule of fees nos. 331 000, 331 100, 331 300).
4. Examination. Among other things, the DPMA examines distinctive character, descriptive indications and capacity to deceive (Sec. 8 (2) MarkenG).
5. Registration and publication (Sec. 41 MarkenG). From now on, you may use the ®.
6. Opposition period. Three months from publication of the registration (Sec. 42 (1) MarkenG).
7. Term of protection. Ten years from the filing date, renewable for further periods of ten years each (Sec. 47 (1) and (2) MarkenG).

After registration, the DPMA does not notify you if someone applies for a similar trade mark; it does not examine new applications for similar earlier trade marks (DPMA). If you want to file an opposition in time, trade mark monitoring helps for €29.90 per month including VAT.