What is the penalty for using the ® circle (r) symbol before the US Trademark Office grants a trademark registration?
If the ® circle (r), is used before trademark registration, there could be a variety of penalties, depending on the context, for example: denial of registration, fraud, false advertising, or other penalties for deception.
Sometimes, trademark applicants being using the ® symbol before the application is granted. Usually, a specimen is submitted that shows the symbol. When this happens, the Trademark Examiner has the authority to determine the intent of the trademark applicant. If the trademark applicant was clearly trying to deceive the public, the Trademark Examiner will deny the application. However, more likely, the Trademark Examiner will request an appropriate specimen (that does not include ®). If the Trademark Examiner determines that there was no intent to deceive, the Trademark Examiner may still allow the trademark application.
Similarly, if the ® is used to deceive the public, a customer or competitor might be able to bring a suit for fraud, unfair competition, false advertising or some other state tort involving deception.
If you are considering litigation, you should consult with a trademark attorney. If you are a trademark applicant, simply avoid using ® until after registration is complete.