The ™ symbol indicates that your sign is being used as a badge of trade origin, whereas the ® symbol indicates that your sign is in fact a registered Trade Mark.
The ® symbol is usually attached to a sign to demonstrate to third parties and competitors that the mark has been registered, which also signifies that any unauthorised use of an identical or similar mark will result in the enforcement of those registered legal rights by the registered Trade Mark owner.
The ™ symbol might be used by businesses that don’t have registered Trade Marks [perhaps they can’t afford them or their applications have been refused]. Alternatively, businesses might use the ™ symbol when their Trade Mark is still in the application process pending registration.
A common reason to use the ™ symbol is when a Trade Mark has been refused on “inherent registrability” grounds, perhaps because it is non-distinctive, descriptive or generic. The business is then left to embark on a strategy to prove that the Trade Mark has “acquired distinctiveness” over time, and therefore uses the ™ as part of that strategy.
Businesses have to be very cautious when using the ™ symbol when they do not own a Trade Mark registration because of the risk of inviting malicious third parties to file the Trade Mark themselves.
When you eventually decide to apply for a Trade Mark, and find out that a third party owns the registration, this can cause huge problems. It can also mean that you have to incur significant expense in actually obtaining a Trade Mark registration for your company, which may not even be possible due to the existence of the earlier registration.
Please be aware that it is a criminal offence to indicate that a Trade Mark is registered when it is not.
