July 15, 2022

IP Symbols: What They Mean, Why They Matter and What They Protect

by Adam Biehl, Esq., & Paul Stammen, Summer Associate, Bailey Cavalieri

Intellectual property generally refers to the rights and interests of the owners and creators of original materials and inventions. [1] Protection of IP has become vitally important in business. IP intensive industries account for over 40 percent of the United States GDP, equating to nearly $7.8 trillion dollars and 47.2 million jobs.[2]

The most common areas of IP are patents, trade secrets, trademarks and copyrights.[3] The manner of protecting these rights varies depending upon the type of IP. Symbols are used to identify certain IP. Both for protecting your IP and to avoid infringing on the rights of others, it is important to understand the meaning of these symbols.

A patent refers to the exclusive rights granted to the inventor of a new product or process. [4] The inventor applies for a patent with the U.S. Patent and Trademark Office.[5] A patent owner often will mark a product with the patent number, “patent”, or the abbreviation “pat” to notify others of their patent rights, but otherwise, there is no particular symbol used to identify a patent.[6] Some products are marked with a “patent pending” notation; however, this simply means that a patent application has been submitted to the patent office and offers no form of actionable patent rights.[7] The owner of a patent must diligently monitor the marketplace to identify “copycat” products that may infringe on the patent.[8]

A trade secret is something (such as a practice, a process or information) that has commercial value to a business, that is generally not known outside of the business, and that gives the business a competitive advantage.[9] The owner of a trade secret must take reasonable steps to keep it secret, so trade secrets are not generally published or otherwise made known to the public.[10] If trade secrets are shared with another party, they typically are identified as “confidential”, but otherwise there is no particular symbol that designates a trade secret.[11]

A trademark is any word, phrase, symbol or design that identifies the source or owner of goods or services.[12] Ownership of a trademark arises from using the mark, even if it is not registered. The owner of an unregistered trademark has certain common law rights from using it, but those rights are limited, and may be enforceable only in the geographic area in which the goods or services are provided.^[13]

If the owner of the trademark uses it in interstate commerce, the owner can apply to register the mark with the U.S. Patent and Trademark Office.[14] Registering a trademark offers significant advantages.^[15] Among other things, registration lists the mark in the national database of registered and pending trademarks, allows the owner to purse infringement actions in federal court, and a registered mark may achieve presumptively incontestable status after five years of continuous use.^[16]

Unlike trade secrets, trademarks are published and used to promote the goods and services of a business to the public. Trademarks are identified by one of three symbols: “®”, “™”, or “℠”.[17] These symbols are not interchangeable. The “®” symbol may only be used in connection with a registered trademark.[18] The “®” symbol provides nationwide constructive notice of the owner’s claim to the mark and enhances an owner’s rights by eliminating a number of defenses to claims of infringement.[19] Conversely, the “™” symbol identifies an unregistered trademark.[20] The “℠” symbol is used for an unregistered “service mark,” which is a trademark used in connection with services rather than products.[21] Although the “™” or “℠” symbols do not identify a trademark as registered, they do put others on notice that the owner is claiming rights to the trademark.

A copyright is an original work of authorship that is a product of creative expression and is fixed in a tangible medium.[22] Common examples of works that may be protected by a copyright include literary pieces, images, art, songs, movies and software.[23]

Ownership of a copyright arises automatically once the work is created.[24] Copyright owners possess certain rights, including the right to reproduce, prepare derivative works and distribute copies.[25] Copyrighted material can be registered with the U.S. Copyright Office, which enhances the owner’s rights and remedies.[26]

Copyrights are most commonly identified by the “©” symbol,[27] although sometimes the word “copyright” or an abbreviation “copr.” is used instead of the symbol.[28] The “℗” symbol also may be used to denote a phonogram copyright for sound recordings.[29] The name of the owner of the copyright and the year it was first published should follow the copyright symbol.[30] Use of the symbol is not required but, again, it puts others on notice that a copyright is claimed in the material.

These symbols identify important IP rights. When you see an IP symbol know that others are claiming an interest in the associated invention, mark, or material. In order to protect your IP and to notify others of your rights, it is important to know what they mean, why they matter and what they protect.

The most common areas of IP are patents, trade secrets, trademarks and copyrights. The manner of protecting these rights varies depending upon the type of IP. Symbols are used to identify certain IP. Both for protecting your IP and to avoid infringing on the rights of others, it is important to understand the meaning of these symbols.