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This article is written by Swapna Gokhale, pursuing a Diploma in Intellectual Property, Media, and Entertainment Laws from Lawsikho.com.

Introduction

Symbols are the tiniest representations of communication. It can be anything. e.g. word, or group of alphabets or mark or sign or colour, etc. to convey the whole communication. The basic idea behind the symbols is to understand the form of words or even entire paragraphs within a moment. For example; indicates that ‘there is a hospital here’ or looking at just we understand that there is parking available here. In short, instead of writing complete words/sentences, just putting symbols is a convenient way for those who want to convey the message to the world.

Like the above-mentioned symbols, many of us have noticed some symbols like TM, ®, ©, Pat Pend etc. All these symbols are connected with intellectual property. For instance, trademark copyright, patent etc. In the case of intellectual property rights also symbols are vital, primarily for IP rights holders, to educate the people about the fact that the rights of the owner exist. Also, these symbols are important to discourage the would-be infringers from imitating those rights. These are often associated with literary work, slogans, logos, designs, inventions or other creative works which indicates that someone is claiming IP rights for that work.  

So, let’s understand, the meaning of these symbols, which IP rights are represented by these symbols, when and where these symbols are being used and the exact place and manner in which these can be used.  

Meaning of trademark symbols “TM” and “®” 

Trademark refers to a recognizable brand, mark or a word or phrase or logo or colour or design, put in a stylized manner, specifically representing the trade for which the said mark is registered. It recognizes the monopoly of the owner over the brand. The basic idea of a trademark is to distinguish the goods or services from that of the others. Therefore, trademarks are supposed to be unique in nature. Now after adopting a particular name or mark for your trade as a trademark, the next step is to secure that trademark by filing a trademark application, before the trademark registry.   

  • Use of TM

After filing a trademark application, you can use the ™ symbol. Normally this symbol is placed adjacent to the mark. This symbol is used when a particular trademark is applied for registration under the trademark registry. It represents the fact that the particular trademark is being used or proposed to be used with respect to the specific goods or services. Also, it gives a message to the people that the applicant has owned the said mark for his particular trade and no one can use the same trademark without the consent of the owner. Normally the ™ symbol is placed on the top right corner of your trademark in superscript text. But there is no particular rule regarding the placement of this symbol. You can place it anywhere around your trademark.

Interestingly, one can also put the ™ symbol for his brand without applying for registration. This simply indicates that the said mark is the identifier of the source of the product or service. Many companies opt to use the ™ symbol in advance for new goods or services. To put the ™ symbol for your mark you do not compulsorily have to apply for registration. But it is definitely advisable to get it registered under the law, for the reason that there is no legal protection for ™.  

  • Use of SM

Particularly the SM mark is for service marks. It is used when the applicant has filed a trademark application for services falling under class 35-45. Generally, the ™ symbol is for the goods and the SM symbol is for the service mark. But it is not mandatory to use the SM symbol for your service-related trademark. You can use the ™ symbol for all the classes including classes 35-45.  

  • Use of ®

The symbol ® is used when the applicant actually got the trademark registration. It shows the status of a trademark. Once the trademark is registered you can use the ® symbol next to your trademark. It represents that it is registered under the relevant trademark law and enjoys full protection against infringement. The use of ® before getting registration is unlawful under the trademark law. 

Meaning of copyright symbol © 

Copyright protects original work. It can be defined as the expression of an idea rather than the idea itself. Symbol © signifies that a particular work is protected under the relevant Copyright Act.

In a view of Section 13 of Copyright Act, 1975 copyright work subsists in literary, dramatic, musical work, or any other artistic work and also work related to cinematographic and sound recording. Thus, any of the work that falls under this category can be protected under the Copyright Act. However, like a trademark, copyright is not a small phrase or logo or mark. It is the whole work that is owned by the author of the work. However, the essence of copyright is that the moment your work comes into existence, it gets copyright protection by default, in absence of copyright registration. Thus, you can simply put © at the end corner or the beginning of your literary or any artistic piece of work or you can flash a declaration about your copyright on that particular work along with the name of the copyright holder and the year in which it was first published. That’s it! 

Of course, it is always better if you register your copyright on any particular work you produced to get the benefit of assertion of your right legally, from the date of your creation, against the imitator. It is considered as prima facie evidence in court in dispute of copyright ownership. However, there is no legal requirement of registration of your work, to put the symbol ©. You can get copyright protection by putting this symbol, even for unregistered work. 

Meaning of the patent symbol “Pat. Pend.”

In India, there are no typographical symbols used for patents. When a patent application is filed, both provisions or with full specification, the owner can use the mark ‘Patent Pending’ or ‘Pat. Pend.’ from the date of receipt of application. After getting the patent registration, the owner can use the ‘Patented’ mark on the patented product’s packaging. Patent validity is 20 years from the date of application. Thus, once the patent validity is over the owner needs to remove that mark as ‘Patented’. The term “Pat. Pend.” per se is not useful for conferring legal benefit to the owner. But the same is an indication the patent application is filed for the particular inventions and it is going to get registered in the near future.

Whether marking of the symbols are mandatory?

In most countries, marking these IP symbols during the pendency of application or after getting registration, is not mandatory. Their use has no legal significance. But it is always beneficial to the owners to convey the message to the world about his ownership rights in that intellectual property. But one cannot overlook the fact that false representation of the existence of your IP rights, by using these symbols, is unlawful.

Significance of IP symbols outside India

1. Trademark

  • United Kingdom

In the UK also, the symbol ™ is used for the mark which is yet to be registered and the symbol ® or RTM represents a registered trademark. A false representation of the mark as registered without obtaining or applying for trademark registration is a criminal offence under UK trademark law. But again, putting these symbols with the trademark is just recommended and not mandatory under the relevant law. 

  • United States of America

In the USA, failure to use a trademark symbol or other representation of registration might lose your right against the trademark infringer, especially the right to get monetary damages. The owner can only obtain an injunction in that case. Section 29 in US trademark law, also prescribes certain forms of effective notice of federal trademark registration, such as the ® symbol, the words “Registered in U.S. Patent and Trademark Office” or “Reg. U.S. Pat. & Tm. Off.”. Here also false representation of the trademark is considered fraud. 

  • France 

Albeit, the symbol ® is accepted for the status of the registered mark, worldwide, the same is not approved in many countries. In France, you can use the letter MD i.e. marque déposée’ or the letter MC i.e. marque de commerce if the mark is registered.

  • Germany

Once your German trademark is registered you can use the recognized ® symbol alongside your trademark. You claim to be the proprietor of a trademark by means of the ™ symbol on your mark.  But in Germany, you can use the ™ symbol for both registered as well as unregistered marks.  

  • Canada

In Canada also symbol ™ is used for unregistered marks and ® is for registered marks. However, those proprietors having Canadian trademark registration but not in other jurisdictions in which they have commercial operations, prefer to put the ™ symbol to their trademark. In Canada also putting these symbols is not compulsory. Canadian trademark law often assumes that consumers speak English or French, and therefore trademark owners and licensees should consider using both English and French symbols. Generally, they use ™, SM, ® and MC (marque de commerce).

However, in some countries such as Mexico, Chile, Peru, Philippines, the marking of the mark ™ or ® is compulsory, in the sense that trademark registration cannot be opposed against third parties in the absence of any marking with the symbol “®”.

2. Copyright

Usually, the copyright symbol i.e. © along with year and name and an indication of the copyright holder is the pattern universally used for your original creation and published work can have copyright protection even without using a copyrights symbol. In most English-speaking countries like the USA, the symbol circled P i.e. is used for copyright in sound recording, phonogram etc. Prior to 1989, the usage of copyright symbol © or indication was compulsory in the USA. But afterwards, the usage of the copyright symbol is optional. Normally, in all the countries usage of copyright symbols is optional. But it is highly advisable to use these symbols as the same can preclude the violator to say that he was unaware of the existence of copyright.

3. Patent

  • United States of America

There is no specific typographic symbol for a patent approved by worldwide countries. In the USA, when you have applied for a patent, you can use the phrase “Patent Pending” or “Pat. Pend.” on the display of the item. These expressions are used to show that a patent application has been filed with USPTO for that particular item and is in the process. Normally in the case of a US patent the format of the expression such as US Patent No. or Pat. No. or similar language along with the number is used.

  • United Kingdom

In the UK also you are required to put ‘Patented’ on the item for which patent is granted otherwise the infringer may copy the same by taking defence that they were unaware about the same being patented and the same is legitimate defence recognized under UK law and such infringer is known as innocent infringement. Thus the phrase ‘Patented’ along with the patent number is a must in order to give notice to the public about the existence of a patent. Thus, in absence of display of the patent number an infringer may still claim they didn’t know the product was patented.

  • Canada

In Canada, you can use ‘Patent applied for’ or ‘patent pending’ after the application of the patent. These phrases though do not contain any particular legal significance but serve as a warning to the others that you may exercise your exclusive rights once the patent is granted.  

Conclusion

Intellectual property rights are intangible assets. There cannot be any property card or report card given which contains the name of the owner. Thus, the rights acquired in these properties need to be expressed through the declaration in the form of symbols like ™, (R), © or “Pat. Pend.” etc.  These symbols are used to specify that the rights of an owner do exist in that particular IP. It acts as a warning that a particular creation of the mind is either applied for registration or got the registration under the law. The significance of symbols, which are often associated with the product, design, logo, literary work, packaging etc. are clear indications to the people that someone owns the IP rights in it. Though usage of these IP symbols is not mandatory under the law or the absence of these symbols does not vitiate the rights of the IP owner, it is highly advisable to put these symbols giving a clear indication about your rights in order to substantiate your evidence against the third party infringer. Also, the misuse of these symbols by anyone without having the existence of any rights may face civil or criminal legal consequences as per the law. Thus the tool of intellectual property symbols can be effectively used by IP owners to safeguard the IP interest and to avoid future complications.    

References


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