People often ask whether they can use the TM mark on a trademark.

In the IP field, TM is the English abbreviation of Trademark (commercial mark) and is a trademark. Mark; ? is the English initials of registered register, pointing to a registered trademark, and is a registered mark expressly stipulated by law. You can often see both on products or services in daily life. They are both trademark marks and serve as public announcements of trademark use.

Trademarks are products of the commodity economy, and their functions and functions have always been to distinguish the different sources of products and carry goodwill.

In business operations, there are many misunderstandings about the use of trademark marks. Here are some excerpts to talk about.

1. What does the TM mark mean?

TM (Trademark), as a mark, is used to declare that relevant text, LOGO, etc. are used as trademarks and to distinguish them. The source of the product is not the general product name or advertising.

The use of TM marks is common in foreign trademarks, especially in the United States. U.S. trademarks adopt the first-to-use principle of trademark protection. At the same time, the owner of a registered trademark has the obligation to let the public know that the trademark is a registered trademark. Therefore, unregistered trademarks in the United States will use the TM mark to inform the use of the trademark, and the use of registered trademarks ?Mark informs of exclusive rights to registered trademarks.

In China, we often encounter a saying in practice: TM means trademark under application. You can only use the TM mark after submitting a trademark application to the National Trademark Office and getting the acceptance notice. In fact, This statement is wrong. This statement comes from the following three aspects: on the one hand, it is affected by the globalization process and Chinese companies follow the trend of foreign trademark use; on the other hand, our country's intellectual property legal awareness and system are relatively backward, and the Chinese people's understanding of the TM mark is immature. The third aspect is the misleading of intellectual property agencies. Once they apply, they can use the TM mark to guide customers to make up their mind to apply, and facilitate agency transactions when the registration period is as long as one or two years.

Chinese law does not clearly stipulate the meaning of the TM mark and how to use it. Therefore, it is not necessary to apply for a trademark before you can use the TM mark. Any trademark can use the TM mark, or it does not need to use the TM mark.

2. What is the meaning of the mark?

China’s trademarks follow the principle of first-to-file trademark protection, and registered trademarks are protected more strongly than unregistered trademarks.

Article 63 of the "Regulations for the Implementation of the Trademark Law" When using a registered trademark, you may indicate "registered trademark" or registered mark on the goods, product packaging, instructions or other attachments.

Registration marks include note (plus 0) and ?. When using a registered mark, it should be marked on the upper right corner or lower right corner of the trademark.

There are two meanings here. First, registered trademarks can use registered marks, but their use is not mandatory; second, the use of registered marks must be in accordance with the express provisions of the law.

The use of registered trademark marks is conducive to publicizing the exclusive rights of registered trademarks to the public and warning market entities not to use trademarks that are identical or similar to registered trademarks without authorization.

3. Unregistered trademarks can be marked with registered trademarks, and registered trademarks can be marked with TM?

Unregistered trademarks can be marked with registered marks

According to Article 52 of the Chinese Trademark Law, Article 63 of the Trademark Implementation Regulations stipulates that only registered trademarks can use registered marks. Unauthorized use of registered marks without registered trademarks is an act of counterfeiting registered trademarks and shall be stopped by the industrial and commercial administration department.

Can a registered trademark be marked with the trademark mark TM?

In the United States, notification of registered trademark registration is obligatory. Yes, but not yes. If the registration mark is not marked as required, you will need to bear the risk of the other party's malicious evidence and corresponding damage compensation in the infringement lawsuit.

In China, the owner of a registered trademark does not have the obligation to notify the registration. In an infringement lawsuit, the rights holder’s trademark registration reminder was not used as a factor in compensation for damages or determination of intentional infringement when no trademark or registered mark was used.

Personally, I think that in the case where there is no express prohibition under Chinese law and the use of registered marks is not obligatory, using the TM trademark mark on a registered trademark does not violate legal provisions and can be used.

4. Are the ?TM? and marks a talisman for infringement?

In practice, applicants often think that the ?TM? Yes, it's actually quite wrong.

First of all, for trademarks under application, if it is suspected of infringement, civil proceedings can be directly initiated; for registered trademarks, if it is suspected of infringement, excluding special exceptions for well-known trademark protection, generally it is necessary to go through the trademark authorization administrative procedure To resolve disputes, civil litigation cannot be initiated directly.

The difference between the trademark application and registered trademark rights protection procedures here is not caused by the TM or ? mark, but is determined by the trademark registration system.

Secondly, a very important point in determining trademark infringement is whether the allegedly infringing words or logos are trademark uses and whether they serve the purpose of distinguishing the source of the product.

In the current environment where the number of registered trademarks is huge and the remaining registrable trademark resources are decreasing, many companies with their own brands are suspected of infringing the registration of others when promoting new products and describing product selling points. trademark text. If the ?TM? or mark is not used on the allegedly infringing words or logos, then there is a defense of non-trademark use and non-infringement in the infringement confrontation; on the contrary, when the ?TM? or mark is used on the accused infringing words or logos, It is precisely to declare to the outside world that this is a trademark and that it is a trademark use. This way of using the mark will cause the other party to get caught in a braid during litigation and confrontation, and it is likely to affect the defense claim of non-trademark use and non-infringement.

Therefore, when there may be a risk of infringement, the use of trademark marks cannot provide any talismanic protection. If used improperly, it will increase the risk of losing an infringement lawsuit. The specific situation depends on case analysis.

In short, a trademark is not a sword. Having a trademark does not mean that there is no infringement, and this is especially true for trademark marks.

The TM mark is only a foreign commercial mark. Chinese law only explicitly stipulates registered marks. It is recommended that market entities use relevant trademark marks in accordance with legal regulations when participating in market competition. TM