™ vs ® — What's the Difference and When Can You Use Each?
In this article we explain exactly what each symbol means, when you're legally allowed to use it, and what happens if...
Walk down any Australian high street and you'll see both symbols - the small ™ tucked beside a brand name, and the circled ® alongside another. Most people assume they mean roughly the same thing. They don't. Using the wrong one, or using one you're not entitled to, can have real legal consequences for your business.
In this article we explain exactly what each symbol means, when you're legally allowed to use it, and what happens if you get it wrong.
The ™ Symbol - What It Means
The ™ symbol stands for "trade mark" and is used to signal that a business considers a particular name, logo, or phrase to be their brand identifier. Importantly, no registration is required to use ™. Any business can apply it to any brand element at any time.
Using ™ is essentially a public declaration that you regard the mark as yours. It puts other businesses on notice that you intend to protect the mark, even if you haven't formally registered it yet.
When ™ is appropriate
- You've applied for a trademark and are waiting for IP Australia to complete the examination process (which typically takes 7 months or more).
- You're using an unregistered mark that you intend to protect through common law rights built up over time.
- You're testing a brand before committing to formal registration.
- Your mark is registered overseas but not yet in Australia.
Using ™ does not give you the same legal protections as a registered trademark. If a competitor starts using a similar name, your ability to take legal action is significantly weaker without registration. ™ signals intent - it does not create enforceable national rights.
The ® Symbol - What It Means
The ® symbol stands for "registered trade mark" and may only be used once your trademark has been formally registered by IP Australia. It is a legal representation to the public and to competitors that your brand is protected under the Trade Marks Act 1995 and that you hold exclusive national rights to use it in relation to your registered goods and services.
Registration is not automatic. It requires a formal application, payment of government fees, examination by IP Australia, and a publication period during which third parties can oppose your mark. Only after all of that is complete, and the certificate of registration is issued, are you entitled to use ®.
What ® gives you
- The exclusive right to use your mark nationally across all registered classes
- A legal presumption of ownership in any dispute
- The right to take action against infringers, including seeking damages
- The ability to license your mark to others and collect royalties
- A registered asset that adds tangible value to your business
- The foundation for international protection through the Madrid Protocol
Registration gives your ® real teeth. If someone infringes a registered trademark, you can issue cease and desist letters, seek injunctions, and claim financial damages. Without registration, your legal options are far more limited and considerably more expensive to pursue.
™ vs ® - Quick Reference
| ™ Trade Mark | ® Registered Trade Mark | |
|---|---|---|
| Registration required? | No - anyone can use it | Yes - mandatory requirement |
| Who can use it? | Any business, at any time | Registered trademark owners only |
| Legal protection provided | Limited common law rights | Full national statutory rights |
| Deters competitors? | Partially | Strongly |
| Enforceable in court? | Difficult and costly | Yes, with clear legal standing |
| Required for licensing? | No | Recommended for robust agreements |
| Asset value to business | Low | High - recorded on IP Australia register |
| International filing basis | No | Yes - via Madrid Protocol |
When to Use Each Symbol
The right symbol to use depends entirely on where you are in the registration process:
- Your application has been filed but not yet registered
- You're using a brand without having registered it
- You're building common law rights through continuous use
- Your mark is registered in another country but not Australia
- IP Australia has issued your certificate of registration
- You are using the mark for the specific classes it was registered under
- The registration is current and has not lapsed or been removed
If you have applied but are waiting for registration, use ™ in the meantime. The moment your certificate of registration arrives from IP Australia, switch to ®. Many businesses forget to make this change, or don't realise the distinction matters.
What About the SM Symbol?
You may occasionally see the symbol ℠, which stands for "service mark." This is commonly used in the United States to indicate an unregistered mark for services (as opposed to goods). In Australia, ℠ has no legal standing and is not commonly used or recognised. Stick to ™ for unregistered marks and ® for registered ones.
What Happens If You Use ® Without a Registration?
Using the ® symbol without a current, valid Australian trademark registration is a criminal offence under section 148 of the Trade Marks Act 1995. The consequences can be serious:
Criminal penalties: Under Australian law, falsely representing that a trademark is registered carries penalties including fines. This applies even if the misuse was unintentional.
Civil liability: Competitors or existing trademark holders may take civil action if your misuse of ® causes them loss or misleads consumers about the status of your brand.
Damaged credibility: If discovered during a commercial transaction, licensing negotiation, or due diligence process, misuse of ® can undermine trust in your business and derail deals.
Overseas considerations: Using ® in Australia for a mark that is registered overseas but not in Australia is still a breach of Australian law. Registration must be Australian to justify ® here.
Common Questions
Yes. The moment you file a trademark application with IP Australia, you can use ™ next to your mark. You cannot use ® until registration is confirmed and a certificate is issued.
No, it is not legally required to display either symbol. However, using them serves a practical purpose: it puts the public and competitors on notice of your claim to the mark. Registered trademark holders are strongly encouraged to use ® consistently, as it reinforces their rights and deters infringement.
No. The ® symbol in Australia specifically refers to registration under Australian law. A US, UK, or other overseas registration does not entitle you to use ® here. You would need to file a separate Australian application (or use the Madrid Protocol) to obtain that right.
Convention is to place ™ or ® as a superscript immediately after the trademarked element, such as Brand Name®. It should appear on the most prominent use of the mark on each piece of material - typically the first time the mark appears on a page or in a document.
Technically, ® should only be applied to the specific mark that is registered. If you have registered a word mark but not a logo mark, you should take care about applying ® to a stylised logo. The safest approach is to register both your word mark and your logo separately, which also provides broader protection.
Yes. If your trademark registration expires and is not renewed, you are no longer entitled to use ®. Continuing to use it after expiry creates the same legal risk as using it without registration in the first place. IP Wealth's Trade Mark Hero monitoring service tracks renewal dates to ensure this never happens to our clients.
The Bigger Picture - Why Registration Matters
Understanding the difference between ™ and ® is really understanding the difference between asserting a brand and owning one.
Many Australian businesses spend years, and significant marketing budgets, building a brand under ™ - only to find that a competitor has since registered the same or similar name and now has the legal right to demand they stop using it. The ™ symbol offers no protection against that scenario.
Registering your trademark is the single most important step you can take to secure the commercial value of your brand. It converts an assertion into an asset, gives you genuine legal standing, and ensures that the brand equity you build belongs to you.
Our specialists will assess your mark, conduct comprehensive searches, advise on the right classes for your business, and manage the entire registration process from application through to your certificate. We also provide ongoing monitoring through our Trade Mark Hero system, so you always know the status of your marks and never miss a renewal date.
Most clients are surprised by how straightforward the process is when you have the right guidance from the start.
Ready to Turn ™ Into ®?
Book a free discovery session with IP Wealth® and find out exactly what it takes to register and protect your brand.
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This article is general information only and does not constitute legal advice. Trademark law is complex and fact-specific - please contact IP Wealth® for advice tailored to your situation. All references to Australian law and IP Australia processes are current as of April 2026.
