Can I use the trademark symbol?
Trademark law is a complex subject, but understanding or having an experienced trademark is critical to protecting your brand’s intellectual property. While your trademark is pending you do have options to protect your trademark from the public with the use of one of the trademark symbols.
Which trademark symbol can I use?
®
The circled R trademark symbol means you have a registered trademark. A registered trademark means you have gone through the entire trademark process and the USPTO has granted you a registration. If your mark is pending, you cannot use the circled R. The circled R is highly coveted and notifies the public that you are registered and will serve as a deterrence from competitors trying to steal your branding. It also lets potential customers know your mark is registered and that they can trust the source of the product.
If you file a trademark application with a circled in the logo, you will likely receive an advisory or fraud notice stating:
The drawing shows use of the federal registration symbol ® with the applied-for mark. However, the USPTO records do not show that the mark is registered. Applicant may not use the federal registration symbol until its mark is registered in the USPTO. TMEP §906, 906.03. After registration, applicant may use this symbol in connection with the specific goods and/or services listed in the registration; or
Improper use of the federal registration symbol, ®, that is deliberate and intends to deceive or mislead the public or the USPTO is fraud. See Copelands’ Enters. Inc. v. CNV Inc., 945 F.2d 1563, 20 USPQ2d 1295 (Fed. Cir. 1991); Wells Fargo & Co. v. Lundeen & Assocs., 20 USPQ2d 1156 (TTAB 1991) .
Source: TMEP 906.03 Informing Applicant of Apparent Improper Use and TMEP § 906.04 Fraud
™
The trademark symbol can be used by just about anyone when they are claiming rights to goods/services without registration, or a common-law trademark. This mark can be used while your trademark application is pending. When filing, the ™ Symbol should not be a part of your drawing submitted to the USPTO. This symbol should just be used when the trademark is printed on your products.
℠
The service mark symbol can be used by just about anyone when they are claiming rights to a service without a registration, or a common-law trademark. This mark can be used while your trademark application is pending. When filing, the SM Symbol should not be a part of your drawing submitted to the USPTO. Trademarks and services marks are essentially the same thing but a service mark is the technical term when offering services.
Source: Trademark Manual of Examining Procedure