The Trademark Symbols : In reference to Scotch Whiskey Labels.

Has it happened to anyone that a scotch whiskey bottle made you pause and wonder about the symbols printed alongside the brand name?. Yes, it happened to me, I got myself confused between “R” enclosed in a circle and “™” enclosed in a circle. As per the study 86% (1) Indians actually read the labels behind the bottles or any snacks. So there is a possibility that many people have once in their life noticed that symbol and wondered what it meant. This blog will explain the concept of a trademark, the distinction between registered and unregistered mark and why the difference matters.

I. Understanding Trademarks:

First and the foremost a trademark is a type of an intellectual property , under Section 2 (2)of the Trademark Act, 1999 (hereinafter referred as an “act”), “a mark capable of distinguishing the good or services in connection with which it is used in the course of trade” and “it can include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or

combination of colours.”

Similarly, Article 15 (3) of the TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights) a trademark is a sign or a mark or combination of sign/mark having distinctiveness in order to be able to distinguish goods or services of one undertaking from those of others. The U.S Code § 1127 and section 9 of Restatement (Third) of Unfair Competition, 19952(4) defines a trademark as a sign or a mark with distinctiveness and it can include any word, name, symbol, or device.

As the meaning of trademark has been understood from the point of view of different jurisdictions. The next thing to understand is the difference between a registered trademark and unregistered trademark in order to grasp the meaning

behind the symbols that confused me on scotch whiskey bottles.

II. Registered and Unregistered Trademark :

India follows a “first to use”(5) principle, meaning that the entity using a mark first is entitled to its protection under the act. The '®' symbolises that the trademark has been registered with the appropriate authority, while the “™“ symbol is often used to claim ownership of a mark even when it is unregistered.

A registered trademark has undergone legal scrutiny, possibly faced objections or refusal, and ultimately sustained its registration. Registration assures that no other similar mark is recorded in the same class of the trademark.The goodwill

accruing to the brand through this mark belongs exclusively to the proprietor, and any infringement can result in penalties or injunctions.

Unregistered trademarks i.e., ®, in contrast, are protected under common law principles, primarily through the doctrines of “use in commerce” and reputation, but enforcement is often more complex and resource-intensive.

III.  The Registration process, representing ® :

An application for registration is made under Section 18(6)  of the Act by the proprietor, followed by publication of the application to invite objections.

Objections many arise under either of the sections -

A. Section 9(7) - Absolute grounds of refusal, such as lack of distinctiveness; or

B. Section 11(8) - Relative grounds for refusal of registration, such as similarity with existing marks.

After the opposition has been raised within 4 months of advertisement under section 21(9) of the act it is then registered, after making sure that the marks has not been opposed or been opposed but ruled in the favour of proprietor and is fit to be registered. The registration confers statutory presumption of ownership and exclusive rights, unregistered marks rely on common law principles, primarily the concept of “use in commerce” and reputation, for their enforceability(10).

This process often inspires greater consumer confidence in a brand, as it signals that the business has undergone a legal vetting process. Registration of a

company’s mark builds goodwill and trust among the public, reducing the perception that the brand might be illegitimate or fraudulent.

IV. Trademark Symbols on Scotch Whiskey Labels:

To better understand how this applies in practice, here are examples of Scotch

Whisky brands and the symbols they use:

Brand	Symbol
Teacher’s	®️
The Ardmore	®️
The Macallan	®️
The Mortlach	™️
Ballantine’s	®️
Glenfiddich	®️
Oban	™️
The Balvenie	®️
Black Label	™️

These examples illustrate which brands have formal registration and which use the ™ symbol without registration. The ™ symbol does not guarantee that the proprietor’s mark will be legally protected, as it can be used regardless of whether an application has been filed. Therefore, the next time you purchase a bottle of Scotch Whisky , the symbols next to the brand name—usually found prominently on the front label—might

catch your attention. Recognising them fosters consumer awareness: a registered trademark bearing the ® symbol has undergone legal scrutiny, is legitimate, and is unlikely to infringe another’s rights.

Therefore, the legal protection provided to registered trademarks not only safeguards consumers from deception but also incentivises business to invest in brand development. By recognising the intellectual effort involved in creating a distinctive market presence, trademark law fosters innovation, competition and trust in the market.

References

1. 8 in 10 Indians see discarded food wrappers & bottles regularly. (n.d.). LocalCircles. 

2. Section 2 of the Indian Trademark Act, 1999

3.  Article 15 of Agreement on Trade-Related Aspects of Intellectual Property Rights.

4.  Concurrences. (2024, November 19). Trademark – Concurrences. 

5. Post, G. (2025, January 21). How to register a trade mark in India. iPleaders. 

6.  Section 18, The Indian Trade Marks Act, 1999

7. Section 9, The Indian Trade Marks Act, 1999

8. Section 11, The Indian Trade Marks Act, 1999

9. Section 21, The Indian Trade Marks Act, 1999

10.  Lin, V. (2025, March 13). What do TM and Circle R (®) symbols mean? - Patent Trademark Blog | IP Q&A. Patent Trademark Blog | IP Q&A.