They appear constantly on packaging, in online stores, and in advertisements: the ® in a circle and the superscript ™. Many companies use them to lend weight to their name or logo—often in the firm belief that this keeps them “on the safe side.” In fact, the opposite is true: Using the wrong symbol in the wrong place does not create a legal right, but rather a liability risk.

Both symbols make a specific statement about the legal status of a label. Anyone who makes this statement when it is not true is misleading the market. We explain which symbol is permitted and under what circumstances.

The ® symbol: for registered trademarks only

The ® stands for “registered” and clearly signals to the public that this is a registered trademark —either nationally with the German Patent and Trademark Office (DPMA) or EU-wide with the EUIPO. In its established case law, the Federal Court of Justice assumes that, upon seeing the ® symbol, the public expects the sign to be registered as a trademark for the user or that the user has at least been granted a license.

What matters, therefore, is not the user’s subjective intention, but the objective legal situation. A mere application is not sufficient—the ® symbol may only be used once the trademark has actually been registered. Equally problematic is the use of a trademark that is not (or no longer) protected in Germany, for example because it is registered only abroad or has expired due to failure to renew.

® without registration: Risk of a cease-and-desist letter under § 5 UWG

Anyone who uses the ® symbol without being the trademark owner or a licensee is generally engaging in a misleading business practice under Section 5(1), second sentence, No. 3 of the UWG . The labeling gives the false impression that a property right exists when, in fact, it does not—and this is relevant under competition law because competitors and customers base their conduct on the supposed trademark registration.

The Cologne Regional Court confirmed this in a widely cited ruling (Cologne Regional Court, November 29, 2016 – 33 O 64/15): Advertising using a symbol marked with a ® that is not registered as a trademark and for which the advertiser is neither the owner nor a licensee constitutes a significant misrepresentation to the relevant public. Even the argument that the sign was included in the catalog only by mistake—for example, due to an editorial error—does not eliminate the misleading nature of the advertisement. Practical consequence: a cease-and-desist letter, a claim for injunctive relief, and the opposing party’s costs.

The ™ Symbol: Originating in the Anglo-American World

The superscript ™ (“trademark”) originates from the Anglo-American legal system. There , it indicates a claimed but unregistered trademark. In Germany, the ™ symbol has no protective effect of its own —it does not, in and of itself, establish any trademark rights. Its meaning is therefore less clear and is understood by only a portion of the public: “We regard this symbol as a trademark.”

Anyone familiar with the meaning of the ™ symbol understands it to mean “trademark registration pending.” This is precisely the basis for the case law: The Berlin Court of Appeal has ruled that the ™ symbol is not misleading as long as a trademark application is actually pending—in which case the statement “registration applied for” is indeed accurate. If no application has been filed, the ™ symbol itself may be misleading. However, case law regarding the ™ symbol is sparse and inconsistent, which is why caution is advised in cases of doubt.

And what about ℠?

Occasionally, one also comes across the ℠ (“service mark”). It also originates from the United States, where it denotes a trademark claimed for services rather than goods. It has no significance in German trademark law and should not be used here.

Recommendations for Businesses

In practice, the legal situation can be summarized in a simple sequence: Register it first, then use the ® symbol. And use the ™ symbol only if an application is actually pending.

Before using the ® symbol, it’s worth taking a quick look at the registry—is the trademark truly registered, for the correct goods and services, and in the correct jurisdiction? Anyone who wishes to register their trademark but does not yet have a registration should refrain from using the ® symbol and, if necessary, use the ™ symbol to indicate that the application is pending. In this way, a small symbol once again becomes what it’s meant to be: a credible indication of an actual legal right. The rise in bad-faith trademark applications also demonstrates just how quickly incorrect use of the symbol can lead to a cease-and-desist letter.

Are you unsure whether you’re using the ® symbol correctly—or have you received a cease-and-desist letter regarding your use of the ® symbol? We’ll review the status of your trademark and your labeling practices, and assist you with the application and defense of your trademark.