What is Trademark Pending?

Trademark pending indicates that an application for trademark protection is in review with the United States Patent and Trademark Office (USPTO). You can use symbols (TM, SM) next to your symbol, mark, logo, word, phrase, or design that indicate the trademark pending status. Using these symbols can also send the message to potential competitors that you've applied for trademark protection.

Trademark Symbols Explained

The trademark symbols are TM and SM. TM stands for trademark, which represents the protection on goods or a company that manufactures goods. SM stands for service mark, typically used for a company that provides services.

Uses for the Symbols

Individuals and companies can use these symbols freely without any legal documentation or approval. They don't actually hold any legal significance.

  • The benefit of using either mark is to make the public aware that you are claiming your branding rights. Most companies choose to use either the TM or SM symbol as a placeholder while the application for an official federally registered trademark is pending.
  • The symbols might also discourage other companies or people from copying your logo, design, phrase, word, or symbol. Adding them helps to warn potential competitors that you've claimed your design.

No legal requirements exist around using any of the symbols. If you don't use the trademark or service mark symbols, the choice is yours. Adding the symbols to your mark may help discourage competition or infringement, but their addition is not necessary.

The Registered Trademark Symbol

The registered trademark symbol (®) has legal restrictions, and federal law regulates its use.

  • You can only use this mark if you've received a trademark registration certificate from the USPTO , not when a trademark application is pending. When you complete a trademark application, you'll include documentation and images of the mark.
  • You can only use the registered mark with the logo, symbol, phrase, word, or design that received the trademark protection . If you change your design, you'll need to apply for a new trademark before using the registered symbol again.

You also don't have to use the registered mark either, although this omission can cause bigger problems.

  • If another company infringes on your trademark, you'll have to prove that the company knew you had trademark protection.
  • You'll also give up your right to claim lost profits and damages unless you prove the trademark infringer knew that you had a registered mark before infringement.

When the registered mark is used properly, the law states that this proper counts as constructive knowledge of a trademark. No one can claim to be ignorant or unaware.

How to Use the Symbols

When adding any of the symbols to your logo, phrase, word, or design, print the symbols in superscript text at the top right corner. If that area doesn't look good, you can drop the symbols to the bottom right corner. No laws exist that dictate where to place the symbols, but these locations are widely accepted.

If you're producing written documents, you can use the symbol once in the first instance of the mark. After you've done so, you can stop including the symbol on successive references in the text.

Why Is Trademark Pending Important?

The purpose of using trademark or service marks to indicate a pending trademark is to claim your design. Although they aren't required, both symbols help bring awareness to others in your industry about your ownership of this design.

Reasons to Consider Not Using Trademark Pending

If you choose not to use the trademark or service marks, there are no legal requirements to do so. But you run the risk of having another company or person use a similar or identical logo or symbol. Using the marks won't actually stop that use from happening, but these marks can deter the competitor. Many people also use the symbols to indicate a pending status with the USPTO.

The only way to secure your trademark legally is to file an application. The filing date will mark when you submitted the request. You'll also include documentation of when you started using the design in any capacity. If someone else tries to file for a similar design, the USPTO typically falls back on these dates. You'll have a nearly impossible time trying to prove that you used a mark first without showing an application.

Common Law Trademark

Common law trademark rights protect businesses or people who don't use the trademark or service mark symbols. You can register the marks in the state where you run your business. But even if you don't register the logo, phrase, or symbol, you may still have legal protection. A company that commonly uses the mark in business falls under the common law trademark rights.

The exception to common law trademark rights is trademark infringement. If you're using a similar or identical design to one that holds a trademark, the owner can take legal action against you.

Common Law Trademark Rights

Common law trademark rights also don't offer the same benefits of a federally registered trademark. These rights include the option to sue in a federal court, publish the mark, and apply for a presumption of incontestability. Presumption of incontestability is available to trademark holders after five years of filing, and it helps lower the risk that someone can sue you in court for trademark infringement or trademark dilution.

Common Mistakes

Many business owners and designers think they can't legally use the trademark or service marks until the design receives approval from the USPTO. But this provision actually applies only to the registered trademark symbol. Using your logo, phrase, design, word, or image will actually qualify you for common law trademark rights. When you use the trademark or service mark symbols, they help generate awareness of your claim to this specific mark.

As long as you're certain that your mark doesn't violate any existing trademarks, you should start using it as soon as possible in your company. Keep documentation of your trademark search so you have proof if your application gets denied. You'll need this proof if any competitors try to apply for a trademark on your design.

The USPTO focuses on filing dates and dates of first use, so make sure to get your application submitted as soon as possible.

Frequently Asked Questions

  • What does trademark mean?

A trademark recognizes that an image, design, word, phrase, or logo qualifies for protection under U.S. law. You can get trademark protection by filing an application with the USPTO. Once your application receives approval, you have legal rights to your mark, and no one else can legally use the exact mark or something similar connected with the goods or services your offer.

  • Can I use a logo while the trademark is pending?

Yes, you can legally use a logo or other design before you receive the trademark. However, if you haven't done a thorough search, you're still at risk for trademark infringement. Before you start using any type of design, including a logo, phrase, word, or symbol, make sure you know that it's not too similar to one that already holds a trademark. A trademark attorney can help with this search to avoid legal problems.

Working with an attorney on the trademark process can save you time. Lawyers can also search more extensively to make sure your mark doesn't infringe on any other trademarks in the register. But it's not necessary to hire a lawyer. Many companies and people file the applications on their own.

Receiving approval on your application and getting your final trademark registration certificate from the USPTO typically takes between six and 16 months. But once approved, the trademark date is the date you filed the application, not the date you received approval.

  • What is the difference between a state trademark and a federal trademark? Which one do I need?

The most widely recognized trademarks are those filed with the USPTO. Completing this process ensures that your mark has legal protection across the country. But you can file for a state-issued trademark if you operate your business in only one state. If your company participates in interstate commerce, a federal trademark is a better option.

Interstate commerce occurs when a company conducts business in two or more states or one U.S. state and at least one foreign country. To qualify as doing business, your company must make sales of goods or services in these areas. Also, stating that you have a business website is not enough to claim you conduct business in multiple states.

If you're thinking about doing interstate commerce at some point in the future, you can file a federal Intent to Use application. This application names trademark registrations that are pending future use. If you file an Intent to Use application, you'll need to file a Statement of Use and pay a $100 per class filing fee. The Statement of Use will inform the USPTO and other businesses of the actual date if and when you use your trademark in interstate commerce.

  • What are common law trademark rights?

Common law trademark rights protect business owners and people who haven't yet filed for a federally registered trademark. If you're using the mark in daily business activities, you qualify for common law trademark rights. But if your design infringes on another trademark, the protection is no longer valid.

Steps to File

  • Any person, corporation, or business partnership can register for a trademark. In order to file for a trademark, you'll need to complete the USPTO's application. The exception to this rule is if you're filing for a state trademark, which requires a different application that varies by state.
  • Once you complete the application, your mark is now trademark pending.

A trademark pending status is an interim solution for protecting your intellectual property. You can use the trademark or service mark symbols with your design, but you need to make sure you file the trademark application as soon as possible. Approval of the application allows you to start using the registered mark and enjoy the legal rights and national protection of a federally registered trademark.

If you have questions about your trademark pending status, you can post your question or concern on UpCounsel's marketplace . Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.