“Patent pending”, “TM", “®” and “©” - What do these intellectual property symbols and terms mean and when can you use them?

Patents, trade marks, designs and copyright are all types of intellectual property protection and different symbols/terms are used for each of these. It is entirely the owner’s decision whether to refer to their intellectual property rights in their literature and on their products. However, correctly referencing one’s intellectual property may be beneficial as it may help keep infringers and competitors at bay, it can help disprove accidental infringement claims and additionally assist in claiming damages.

Patents

A patent is a legal right that protects an invention from being used by others without the owner’s permission. Patent protection does not arise automatically and must therefore be applied for.

If a patent has been filed in the UK but has not yet been granted, the applicant can use the term “patent pending” inside of the UK on their literature and on their products. Once the patent has been granted in the UK, the owner can then use the term “patented” inside of the UK on their literature and on their products. However, when referring to a pending/granted UK patent outside of the UK, the applicant/owner should also include the patent number or provide a web address, and the web page clearly sets out the patent number.

It is important to note that falsely representing that a product is ‘patent pending’ or patented is a criminal offence in the UK and is punishable by fine. Such false representations include an article being stamped, engraved, impressed, or otherwise applied to it the words “patent”, “patented”, “patent applied for”, “patent pending”, or anything falsely expressing or implying that a patent has been applied for or granted.

Trade Marks

Trade marks are signs (commonly brand names/logos) used by a business to identify the business as the owner of their product/service. In the UK there is both unregistered trade mark protection (which arises automatically) and registered trade mark protection (which arises only when the trade mark has been registered at the UK’s intellectual property office).

When referring to unregistered trade marks, the proprietor can only use the ™ symbol and the purpose of doing so is to illustrate that a sign is being used as a trade mark. When referring to registered trade marks, the proprietor can use either the ™ symbol or the registered symbol ®.

In the UK, it is a criminal offence to falsely represent that a trade mark is registered (by using the word “registered” or the registered trade mark symbol “®”), and such an offence is punishable by fine. The aforementioned also applies if a false representation is made as to the goods or services for which a trade mark is registered. When using the registered trade mark symbol (®), it is important to consider where this symbol will be present. For example, if a trade mark is registered in the European Union but not in the UK, having the registered trade mark symbol present on products available for sale in the UK could be a criminal offence.

Designs

In the UK, design protection can either be unregistered (such protection arises automatically) or registered (which is only obtained when the design has been registered at the UK’s Intellectual Property Office). UK registered design protection covers the appearance of whole or part of a product (being any industrial or handicraft item other than a computer program).

Once registered, the owner can state that the relevant product is a “UK registered design” and the owner should also include either the registered design number or provide a web address, and the web page clearly sets out the registered design number.

Falsely representing that a design has been registered in the UK (by stamping, engraving, or impressing an article with the word “registered” or anything expressing or implying that the design is registered), is a criminal offence and is punishable by fine.

Copyright

In the UK there is no register of copyright works, as copyright protection is obtained automatically. Copyright protection can arise when you create original literary, dramatic, musical, and artistic works. If you have created such a piece of work and copyright subsists within this then you can choose to mark your work with the copyright symbol ©, and if this symbol is used it is beneficial to also include the year of creation and the owner’s name.

Summary

Correctly referencing your intellectual property rights can be a very strong tool, however, it should be done so with caution as incorrectly referencing your intellectual property could potentially be a criminal offence. If you have any further questions regarding how to reference your intellectual property rights, we recommend that our advice is sought as soon as possible.