IP Notices: The Communication Pitfalls Behind ®, ™ and Ⓓ

For instance, it is not uncommon to see people assume that affixing such a symbol creates legal protection. Similarly, there is often concern that the absence of such a symbol might call into question the existence of rights. The recent reform of EU design law provides a current occasion to revisit some of the fundamental principles underlying this topic. One visible element of the reform is the introduction of “Ⓓ”, a circled D that may be used as a registration symbol for registered EU designs. This development refocuses attention on what IP notices can and cannot achieve.

Before turning to specific issues (see Sections II-IV), one point can be established from the outset: in Germany, IP notices primarily serve a communicative function. While they signal to the outside world that protection is claimed for a work, a sign or a design, they do not, as a rule, establish such protection. From a practical perspective, it is important to distinguish carefully between the individual notices and their respective meanings. Each symbol conveys its own specific message (see Section I) and, if used imprecisely, may give rise to legal risks.

I. At a Glance: Key Symbols and Their Meanings

There is a wide range of IP notices. These can generally be assigned to different areas of law. They differ not only in their visual appearance, but also in the specific message they convey. For an initial overview, the following summary of the most common IP notices may be helpful:

II. In detail: ™

One particularly interesting IP notice is the aforementioned ™ symbol. It is often found in connection with internationally used trademarks, frequently as a consequence of standardised corporate design guidelines. One example:

Under U.S. law, ™ (or ℠ for services) indicates that trademark rights are being asserted without registration. In this system, ™ stands in contrast to ®, which is reserved for registered trademarks. It is worth noting that U.S. law attaches favourable legal consequences to the use of ® in relation to the enforcement of certain claims (see 15 U.S.C. § 1111).

Comparable legal consequences are, in any event, not expressly associated with the use of ® under German law (although trademark-law advantages in the context of genuine use may be conceivable, see Ebert-Weidenfeller/Schmüser, GRUR-Prax 2011, 74; see also our blog post of 15 May 2026 on the significance of adding the ® symbol for the perception of OBELIX as a registered trade mark in the context of Art. 8(5) EUTMR). If the use of such symbols is nevertheless desired, for example for strategic reasons (see in more detail Rößler/Vierkötter, IPRB 2011, 36, at I.), caution is required. It must be borne in mind that the admissibility of the respective presentation is assessed under the German Act Against Unfair Competition (UWG), at least where it applies. The decisive question is usually whether the relevant public is misled by the specific symbol used (Section 5 UWG; so-called “appropriation of IP rights”).

A distinction that is often overlooked in practice is that between ® and ™. The case law regarding ® is comparatively clear. According to the courts, the relevant public understands the addition of ® to indicate that there is a registered trademark of precisely that content (see Federal Court of Justice, GRUR 2009, 888 – Thermoroll para. 15 et seq.). If a registered trademark exists, ® can generally be used without misleading consumers. The position is different where no registration exists. In that case, the use of ® may be misleading (for further details, see Fezer MarkenR/Fezer, 6th ed. 2025, MarkenG Section 2 para. 7 et seq.).

The position is less clear with regard to ™. Case law has not yet established a consistent approach to public perception. This is of considerable practical importance since the assessment under unfair competition law largely depends on how the relevant public interprets the symbol.

In 2003, the Regional Court of Munich I held that a not insignificant part of the German public recognises the symbol ™ as an abbreviation of “trademark”, but does not appreciate its specific use in the Anglo-American legal sphere for unregistered trademarks. Rather, the relevant public understands ™ as an indication of a trademark registered abroad, given that in Germany, ® may only be used for registered trademarks. Since, in the case at issue, ™ was used in connection with a software designation (“DAN”) without any trademark registration, the court found the use to be misleading (see Regional Court of Munich I, judgment of 23 June 2003 – 1 HK O 1755/03, at II.1.i). Effectively, the Regional Court of Munich I therefore deemed ™ to have a somewhat similar meaning to ®, since ™ too was perceived by the public as being linked to a registration.

Almost ten years later, the Berlin Court of Appeal came to a different conclusion regarding the perception of the ™ symbol. In summary, the court held that the public generally does not perceive ™ as an indication of a registered trademark (see Berlin Court of Appeal, order of 31 May 2013 – 5 W 114/13, para. 9 et seq.). The court drew distinctions in detail. To the extent that the symbol is recognised by the relevant German public, it is understood to indicate that a trademark registration has merely been applied for. Another significant proportion of the public attributes no independent meaning to the symbol at all (the Regional Court of Essen had likewise assumed in an earlier decision, with regard to part of the public, that ™ was seen merely as a “decorative design without any substantive meaning”, see judgment of 4 June 2003 – 44 O 18/03; for further details, see Rößler/Vierkötter, IPRB 2011, 36, 38). To the extent that the public recognises the ® symbol as indicating a registered trademark, they distinguish it from the ™ symbol and do not infer the existence of a registered trademark. Only a very small group of consumers remain who do not recognise the difference between the two symbols and therefore also understand ™ to indicate a registered trademark. In cases such as that concerning the slogan “Claim Your Right™”, where a trademark application procedure is pending, the Berlin Court of Appeal considered that the use of ™ may, on a case-by-case basis, be regarded as not misleading, at least on the basis of a balancing of interests.

In light of the limited case law and the absence of a clear distinction in public perception, using ™ in Germany is risky. Given its proximity to the term “trademark” and the steadily advancing level of language skills, it does indeed seem likely that the public does not differentiate between ™ and ® (BeckOK UWG/Rehart/Ruhl/Isele, 30th ed., 1 October 2025, UWG Section 5 para. 697; on the trend towards atypical use of the ™ symbol as a linguistic means of expression in the English-speaking world and possible consequences, including perception-related consequences, see Asay/Hingson/Plamondon, Extra-legal Uses of TM, JIPEL Vol. 14, No. 1, 2025). According to this view, adding ™ also conveys that there is a trademark of precisely that content (BeckOK UWG/Rehart/Ruhl/Isele, 30th ed., 1 October 2025, UWG Section 5 para. 697; see also Köhler/Feddersen/Bornkamm/Feddersen, 44th ed. 2026, UWG Section 5 para. 4.134). Overall, as a precautionary measure, it is advisable to refrain from using the ™ symbol in Germany. Even where the trademark is registered, the ® symbol should, if anything, be used as the IP notice.

III. Common Misconceptions

1. Protection by Affixing the Symbol?

The idea that protection is created by affixing a symbol is a remarkably persistent notion. One possible explanation for this misconception is that it does have – to some extent – a real basis when viewed from a historical and comparative law perspective. For example, under U.S. copyright law, a copyright notice was generally required for works first published before 1 March 1989 (for exceptions and further details, see here; Ulmer-Eilfort/Obergfell/Ulmer-Eilfort, 2nd ed. 2021, VerlG, Section 14 para. 13).

However, under current German and European law, no such link exists. In copyright law, protection arises from the existence of a protectable work (Sections 1 and 2 UrhG). In trademark law, protection arises through registration, use (requiring “Verkehrsgeltung”, i.e. recognition of the sign as a trade mark among the relevant public) or well-known status (see Section 4 MarkenG). The symbol may, at most, document an existing legal status. It does not create it.

2. Mandatory Use?

Equally widespread is the notion that IP notices are legally required. This impression is likely due, above all, to the ubiquity of ©, ® and even ™ in commercial practice. Looking at competitors’ product portfolios can easily lead to the assumption that distributing products without such markings may result in disadvantages when it comes to enforcement, or even a loss of protection.

However, this assumption is incorrect under German and European law. This is evident from the wording of Article 5D of the Paris Convention, which expressly states that the affixing of any sign or notice is not required. The use of such symbols is therefore a matter for the respective rights holder’s own commercial decision.

This gives rise to a practically relevant tension. Use is voluntary, but by no means “legally neutral”. As the example of the ™ symbol discussed above shows, IP notices convey a legally significant message. If that message is objectively inaccurate or liable to create misconceptions in the individual case, this may have consequences under unfair competition law. “No obligation” therefore does not mean “no responsibility”.

3. A Sign of Incontestability?

Beyond the misconceptions already discussed, IP notices are often understood to signal that the underlying right has been examined and secured, and can be readily enforced in the event of a dispute.

However, at this point, a degree of caution is generally warranted. Whether the use of a symbol is justified in a given case is not always certain. This is particularly evident in the case of unexamined or only partially examined registered rights. In design law, for instance, the registration process at the German Patent and Trade Mark Office does not involve a substantive examination of novelty and individual character (similarly, before the EUIPO, the examination is essentially limited to formal grounds for refusal; see our article of 16 June 2025). Therefore, a formal registration does not necessarily guarantee the substantive validity of the right.

This shows that rights holders should also closely review their portfolio and market presence. If a right is later declared invalid, urgent action is needed to adjust the product presentation, since the symbol used continues to assert protection. A notice that was initially permissible may therefore quickly become the subject of a misleadingness debate at a later stage.

IV. The New Player: Ⓓ

The recent EU design reform introduced an official registration symbol: Ⓓ (“D in a circle”). Article 26a of the Community Design Regulation, as amended by Regulation (EU) 2024/2822 (see also Article 24 of Directive (EU) 2024/2823), allows the holder of a registered EU design to “inform the public that the design is registered” by placing “the letter D enclosed within a circle” on the product in which the design is incorporated or to which it is applied. This notice “may be accompanied by the registration number” or “hyperlinked to the entry” in the register.

The purpose of the provision is already apparent from the wording of Article 26a. It is not concerned with creating protection, but with providing information (“inform the public”). The provision therefore primarily serves a communicative purpose. In addition, in light of the express reference to the possibility of adding the registration number or a link to the register, it seems appropriate to attribute to the symbol a verification function (at least to some extent). The symbol is therefore intended to signal protection and, where appropriate, facilitate access to the relevant register entry. This interpretation is consistent with Recital 21 of Regulation (EU) 2024/2822. According to this recital, the registration symbol is intended to facilitate the marketing of design-protected products, particularly for SMEs and individual designers, while also raising awareness of design registration regimes at the EU and national levels. To this end, a “commonly accepted notice” is to be made available. 

It has been made clear that Ⓓ is intended to make design protection visible in the market in a standardised manner. At the same time, the issue of unexamined registered rights, which was addressed above (Section III.3), should be borne in mind. For example, if a registered EU design is later declared invalid, this has ex tunc effect, meaning the design is deemed to have had no effect from the outset (Article 26(1) of Regulation (EC) No. 6/2002). If, in such a case, Ⓓ continues to be used on product packaging out of carelessness or habit, this may raise questions under unfair competition law (see Köhler/Feddersen/Bornkamm/Feddersen, 44th ed. 2026, UWG Section 5 para. 4.133, with further references, on advertising with a utility model or design that has not yet been registered; see Higher Regional Court of Frankfurt am Main, GRUR-RR 2015, 480 – Tea Exclusiva; on expired IP protection, see Ebert-Weidenfeller/Schmüser, GRUR-Prax 2011, 74, 77).

V. Conclusion

IP notices do not create protection, but make existing protection visible. Their use is voluntary but not legally neutral. As the example of the ™ symbol shows, their use may entail risks under unfair competition law in individual cases and create additional monitoring obligations. What remains decisive is a truthful and careful approach to such notices. The new Ⓓ symbol also fits this pattern, since it merely indicates the registration of a design. IP notices therefore remain, above all, communication tools whose use should be carefully planned and regularly reviewed.

If you are unsure which IP notices are appropriate and legally permissible for your market presence, we would be happy to assist you with their legal assessment and practical implementation. Please feel free to get in touch.