Yes. Using the TM symbol without registering your trademark is completely legal, requires no application, and costs nothing. You can place TM next to any word, logo, or slogan you’re using as a brand identifier for goods, and no government agency has to approve it first.1United States Patent and Trademark Office. Trademark Basics What TM gives you is real but limited, and knowing the limits is where most business owners get caught out.
What TM and SM Signal
TM stands for “trademark” and tells the world you’re claiming a name, logo, or design as a brand identifier for goods you sell. SM stands for “service mark” and does the same job for services rather than physical products. A clothing brand would use TM; an accounting firm would use SM. Both symbols work the same way legally, and neither requires filing anything with the U.S. Patent and Trademark Office or any state agency.1United States Patent and Trademark Office. Trademark Basics
Using TM or SM doesn’t hand you a special legal status by itself. What it does is put competitors on notice that you consider the mark your intellectual property. That notice matters, because it makes it harder for anyone to later claim they had no idea you were using the mark as a brand.
What Rights You Actually Have Without Registering
The moment you start using a mark in real commerce, you gain common law trademark rights. These rights don’t come from paperwork. They come from the act of selling goods or services under the brand name. As long as your use is genuine and ongoing, courts will recognize them.2United States Patent and Trademark Office. Why Register Your Trademark?
Common law rights let you stop someone else from using a confusingly similar mark on related products within the geographic area where your brand has built recognition. If you’ve been running a coffee shop called “Brewed Awakening” in your city for five years and a new shop opens two miles away with the same name, your prior use gives you grounds to challenge them. The Lanham Act provides a federal cause of action for this kind of infringement even without a registration, letting you sue under Section 43(a) when someone’s use of a similar mark is likely to confuse consumers about who’s behind the product or service.3Office of the Law Revision Counsel. 15 U.S. Code 1125 – False Designations of Origin, False Descriptions, and Dilution Forbidden
How strong your claim is depends on how long you’ve been using the mark and how much recognition it has earned. Courts look at sales volume, advertising history, and customer awareness when evaluating common law rights.
Not Every Name Qualifies
Putting TM on something doesn’t automatically create enforceable rights. Your mark has to be distinctive enough to identify you as the source. Generic terms receive zero protection: you cannot claim rights in the word “Coffee” for a coffee shop, no matter how long you use it. Descriptive marks like “Quick Print” for a printing service are only protectable once they’ve acquired what courts call “secondary meaning,” where consumers have come to associate that term specifically with your business rather than reading it as a plain description. That usually takes years of use and significant marketing.
Suggestive marks, which hint at a quality without describing it, get protection from the start. Arbitrary marks (a real word used in an unrelated context, like “Apple” for computers) and fanciful marks (invented words like “Kodak”) receive the strongest protection. If you’re picking a new name and plan to rely on TM alone, choosing something higher on that spectrum makes the symbol far more meaningful.
How to Display the TM Symbol
Place TM immediately next to the mark it represents. The most common position is superscript in the upper-right corner of the word or logo, though the lower-right corner works too. There’s no legal rule about font size or style, but it should be legible enough to serve its notice function.1United States Patent and Trademark Office. Trademark Basics
You don’t need to attach TM every single time the mark appears. Standard practice is to use it on the most prominent appearance of the mark in a given document, webpage, or piece of packaging, then leave it off subsequent mentions. Consistent use across your commercial materials reinforces your ownership claim, so include it on product packaging, your website header, advertisements, and social media profiles.
Keep Evidence of Your Use
Common law rights exist because you used the mark, so enforcing them depends on being able to prove that use. The best evidence looks like what the USPTO calls “specimens”: examples of the mark appearing in real commercial activity.4United States Patent and Trademark Office. Specimens
For goods, strong evidence includes photos of the mark on product packaging, labels, or attached tags; screenshots of website sales pages showing the mark near the product, a price, and an “add to cart” button, with URL and date visible; and dated invoices or receipts connecting the mark to real transactions.
For services, useful evidence includes advertising and marketing materials, photos of storefront or office signage displaying the mark, and invoices or business cards showing the mark alongside the services you provide.
Start collecting this from day one. A folder of dated screenshots, receipts, and photos becomes invaluable if you ever need to prove when your rights began. Many infringement disputes come down to who can produce better documentation of earlier use.
The Big Catch: Geographic Limits
The biggest weakness of TM-based common law rights is that they’re geographically limited. Your protection reaches only the area where you’ve actually been doing business and building brand recognition. A bakery in Austin with a distinctive name has no common law basis to stop someone from opening a bakery with the same name in Portland.2United States Patent and Trademark Office. Why Register Your Trademark?
This gets complicated for businesses that sell online. If your e-commerce store ships nationwide, you might assume your rights extend nationwide too, but the picture is murkier. Courts generally accept that selling through a website qualifies as interstate commerce, yet your common law rights still depend on where you’ve built actual customer recognition, not on where a package could theoretically be delivered. A handful of online sales into a distant state doesn’t necessarily establish the kind of marketplace presence that common law protection requires.
The geographic limit also cuts the other way. Without federal registration, there’s no nationwide notice of your claim. A competitor across the country could adopt your mark in good faith, build their own customer base around it, and potentially block you from expanding into their territory later.
Don’t Use the Registered Trademark Symbol
The ® symbol carries a completely different legal meaning from TM. You can only use ® after the USPTO has issued a federal registration for your mark, and only in connection with the specific goods or services listed in that registration.1United States Patent and Trademark Office. Trademark Basics
Using ® before your mark is actually registered can backfire. Courts have treated premature use of the symbol as evidence of bad faith, which can cost you the ability to collect damages in an infringement case or even sink a pending application. The only recognized defense is that the misuse was a genuine mistake, such as the USPTO canceling a registration without your knowledge. While an application is pending, stick with TM or SM.
Search Before You Commit to a Name
Using TM on a mark that infringes someone else’s existing trademark doesn’t just fail to protect you. It exposes you to liability. If you adopt a name confusingly similar to a registered mark, the owner can sue you for infringement, and using TM in good faith isn’t a defense. Available remedies against an infringer include an injunction forcing you to stop using the mark, an order to hand over your profits, damages, and in exceptional cases, the other side’s attorney’s fees.5United States Patent and Trademark Office. About Trademark Infringement
Before investing in a brand name, search the USPTO’s federal trademark database for conflicts. Look for marks that sound similar, look similar, or create a similar commercial impression, especially in your industry. A live registration close to yours in the same category is a red flag.6United States Patent and Trademark Office. Federal Trademark Searching
The federal database won’t catch unregistered common law marks. A full clearance search also involves state trademark databases, business name registries, domain names, and general internet searches. Many businesses hire a trademark attorney for this before committing to a name. The cost of a professional search is a fraction of what a rebrand would cost after a cease-and-desist letter arrives.
Keep Using It or Lose It
Common law rights exist only as long as you keep using the mark. If you stop, you risk abandonment. Under federal law, three consecutive years of non-use creates a legal presumption that you’ve abandoned the mark. At that point, someone challenging your rights doesn’t need to prove you intended to give up the mark; you’d need to prove you had valid reasons for the gap and intended to resume use.7Office of the Law Revision Counsel. 15 U.S. Code 1127 – Construction and Definitions
There’s a second, sneakier way to lose your rights: genericization. If your brand name becomes the word people use to describe an entire category of products, it stops functioning as a trademark. “Escalator” and “zipper” were once protected trademarks that became generic terms. To prevent this, use your mark as an adjective followed by a generic term (“Kleenex tissues,” not just “Kleenex”), and take action when you see others misusing your mark as a generic word.
Policing your mark matters even without a registration. Allowing widespread infringement to go unchallenged can lead a court to find that the mark has lost its ability to identify your business as the source. You don’t need to sue everyone, but sending cease-and-desist letters when you spot infringement in your market shows you’re actively maintaining your rights.
When TM Isn’t Enough
Common law rights with a TM symbol are a starting point, not a ceiling. If you’re building a business with any ambition beyond a single local market, federal registration closes most of the gaps described above. Registration gives you nationwide priority from your filing date, a legal presumption of ownership, access to federal court, the ability to record your mark with U.S. Customs to block infringing imports, and eligibility for enhanced damages in infringement lawsuits.5United States Patent and Trademark Office. About Trademark Infringement
The base filing fee for a federal trademark application is $350 per class of goods or services, with additional fees if you use free-form descriptions instead of selecting from the USPTO’s pre-approved list.8United States Patent and Trademark Office. USPTO Fee Schedule As of early 2026, average processing time from filing to registration is about 10.2 months.9United States Patent and Trademark Office. Trademark Processing Wait Times During that waiting period, you continue using TM rather than ®.
If you’re not ready for federal registration, most states offer their own trademark registration systems, with filing fees that generally range from about $10 to $90. State registration creates a public record of your claim within that state, gives you standing to bring infringement lawsuits in state court, and strengthens your common law rights. It won’t give you nationwide protection or let you use the ® symbol, but for a business that operates primarily within one state, it’s a meaningful step up from TM alone.