The ©, ™ and ® symbols: how to use them?

Originating from the Anglo-Saxon practice, it is common to encounter the ©, ™ and ® symbols in various communications as a mention of the existence of intellectual property rights However, their meaning and necessity are not very clear. Sometimes, the difference between these three signs is not even well perceived.

1. Technical question: how to write them?

Quite simply, open the parenthesis, then type the corresponding letters in lower case, and close the parenthesis, i.e. (c) – then hit the space bar.

This is the copyright symbol. It is sometimes attached to a title, photo, or video, or placed at the bottom of a website with the words “Copyright” and “All Rights Reserved”.

This is the Trademark symbol. It is sometimes attached to a trademark that is not filed, or a trademark filed but not yet registered. It is then a temporary symbol. Note that it should not be included in the trademark application.

This symbol stands for Registered Trademark. It can only be used when a trademark is registered, i.e. filed, examined and validated by an intellectual property office, such as the French National Intellectual Property Office (INPI). Similarly, it should not be included in the trademark application.

These symbols have appeared with the digitalisation of creation.

The first symbol is the Copyleft symbol: . This indicates that the work is free of rights, i.e. the author authorises the use, modification and distribution of his/her work, provided that this authorisation remains intact when the work is used.

There is also the Creatives Commons symbol: , or . They indicate that the work is licensed under a Creative Commons license, which makes it easier to use the work. It was inspired by free-software licenses. Depending on the type of Creative Commons licence chosen, the author can authorise third parties to reproduce and distribute a work, while requesting that his or her name be cited. However, additional restrictions may be applied. It is therefore important to check the conditions contained in the licence.

First, it should be noted that in France there is no obligation to add these symbols. No additional legal protection in France will result.

These symbols are of more interest in Anglo-Saxon countries, where the use of these signs is important in case of conflict.

The use of the © symbol and the “All Rights Reserved” mention comes from the pre-1989 practice in the United States, where creators wishing to fully benefit from copyright protection had to register their work with the US Copyright Office, in addition to including these symbols in their communications. Today, the filing and the notice are only necessary to be able to sue for copyright and to benefit from certain types of damages.

However, such a register does not exist in France since works are fully protected by the mere fact of creation. The only registration that should be made in the context of copyright law is optional but highly recommended: this involves registering one’s work with institutions that allow to establish proof of anteriority to easily demonstrate the date and ownership of the work, such as with the Copyright.eu service.

In the United States, the ™ symbol is useful in the case of unregistered (or common law) trademarks, a type of mark that exists in common law jurisdictions and does not require filing. Also, the ® sign is useful for a registered trademark to benefit from certain types of damages in addition to facilitating proof of the infringer’s knowledge in case of litigation. However, in France, the right on a trademark arises from its registration with the INPI, and it is not necessary to affix a mention.

The Paris Convention for Intellectual Property of 1883 states that “No sign or mention of the patent, utility model, trademark registration or industrial design registration shall be required on the product for the recognition of the right” (Article 5 §D).

In France, there is no regulation of the use of these symbols. However, it is still advisable to use them in connection with genuine rights and legitimately so as not to become misleading.

The use of these symbols in France is therefore optional. On the other hand, they can be used to inform the public that a work is protected by copyright or that a trademark is filed/registered. This reinforces the opinion that the consumer may have on the creation or the trademark.

These signs also help to distinguish the brand or creation from other text or graphic elements in communication.

It is also a deterrent to potential plagiarism. Although it does not protect against bad faith, the public may understand that the right holder wishes to protect its work or trademark and that any copy will potentially be defended.

Also, in the case of a trademark with little or no distinctiveness:

• If the mark is registered: it may be interesting to add the ® symbol to remind the public that it is a registered mark, to avoid it becoming a generic mark. This is the risk of trademark degeneration, i.e., a trademark that is so undistinctive and widely used that it becomes a common name in everyday language because consumers forget that it is a trademark. Some best-known examples are the French Caddie and Abribus trademarks.
• If a registration could not be obtained (refusal of the INPI for non-distinctiveness): it may also be interesting for the owner to draw attention to the fact that he/she still wishes to use the sign by attaching the ™ symbol, and try to acquire distinctiveness through use, to then retry a registration later.

In conclusion, the ©, ™ and ® symbols have different meanings and are not mandatory in France. Nor are they regulated. However, they could be used to inform the public and to deter potential infringements.