What in the World is the Difference between a Trademark and a Service Mark?
Imagine that you are a small or medium business owner who has decided to take the big step to protect your brand's identity, by seeking to obtain a federal trademark registration. You are immediately confronted with all sorts of terminology and rules that seem like a foreign language to you. What do you do? One of the first stumbling blocks that most people go through is when confronted with a choice between whether their brand needs a "Trademark" or a "Service Mark." While these terms are very closely related, they serve slightly different purposes, and should be used correctly. Understanding the distinction between trademarks and service marks can help ensure your brand is protected in the right way. The purpose of this article is to help you in that quest.
What is a Trademark?
Generally speaking, most people have heard about a "Trademark." That being the case, the term "Trademark" is often universally used by laypersons to describe marks or brand that offer products AND/OR services. In fact, a "Trademark" applies only in the case of someone who is offering a product for sale.
A trademark is a recognizable symbol, word, phrase, logo, or combination thereof that identifies goods or products offered by a company. Essentially, it distinguishes your products from those of competitors, making your brand memorable and uniquely identifiable to consumers.
Some popular examples of famous trademarks that everyone knows are:
- The "apple" logo for computers/phones/electronics
- The Nike "swoosh" logo for sneakers and athletic apparel
- The term "Chevrolet" for automobiles
- The term "Big Mac" for a hamburger sandwich
Trademarks provide exclusive rights to the owner, ensuring that others cannot use a similar mark for competing or similar/related goods. This helps prevent customer confusion and safeguards the originality of your products in the market. Trademarks also can be a valuable asset that you can sell or license to others. An unregistered trademark is often denoted with the ™ symbol. If successful in obtaining a federal registraion, then it can use the ® symbol.
Trademarks in Everyday Life
Most people encounter trademarks everyday of their life, anytime that they search on Amazon or another online marketplace to buy something, or when they walk into a brick and mortar store to purchase a name brand item. When you buy a pair of Nike sneakers, you have an expectation of the quality and comfort to expect. You also are willing to pay a premium for that sneaker, over a brand that you have never heard of. That is the value of a trademark.
What is a Service Mark?
Fewer people have heard of a "Service Mark," primarily becuase people tend to incorrectly refer to everything as a "Trademark."
A service mark is the same concept as a trademark, except applicable to the sale or offering of a service, rather than a good/product. So, a service mark is also a recognizable symbol, word, phrase, logo, or combination thereof that identifies services offered by a company.
Some popular examples of famous service marks that everyone knows are:
- "FedEx" or "UPS" for mail and package delivery
- "NBC" or "CBS" or "Fox" for TV broadcasting services
- "Marriott" for hotel services
- "McDonalds" for a fast food restaurant
Service marks provide exclusive rights to the owner, ensuring that others cannot use a similar mark for competing or similar/related services. This, again, helps prevent customer confusion and safeguards the originality of your services in the market. Service marks also can be a valuable asset that you can sell or license to others. An unregistered service mark is often denoted with the ℠ symbol. If successful in obtaining a federal registraion, then it can use the ® symbol (just like a trademark).
Can a Brand be Both?
Given that a particular company or brand can be providing both goods and services to consumers, it is also possible for a mark to be BOTH a trademark and a service mark. So for instance, if you are offering services, but also selling software, your mark can serve as both a trademark and a servicemark. In fact, when you apply to register your mark at the USPTO Trademark Office, you can list the classes applicable for both the sale of goods/products or services. International classes 1-34 are for the sale of goods/products (spanning from chemicals and pharmaceuticals to clothing, cosmetics, and machinery), whereas international classes 35-45 cover the sale or provision of services (such as advertising, legal services, insurance, telecommunications, and education). For more information on International Class designations, see our blog article on that topic - https://www.iveticlaw.com/how-do-i-determine-the-classes-for-my-trademark
Legal Protections for Trademarks and Service Marks
Both trademarks and service marks are protected under the Lanham Act in the United States. Registration with the United States Patent and Trademark Office (USPTO) offers enhanced protections, such as:
- Nationwide rights to your mark
- Legal presumptions of ownership
- The ability to file lawsuits in federal court for infringement
While federal registration is not mandatory, it strengthens your ability to protect your brand from misuse or imitation. Failing to register your mark leaves your business more vulnerable to competitors.
Symbols Associated with Trademarks and Service Marks
You may have noticed the symbols ™, ℠, and ® accompanying brand names and logos. Here's what each one means:
- ™ (Trademark Symbol): Used to indicate an unregistered trademark for goods. It asserts your claim to the mark even if it's not formally registered.
- ℠ (Service Mark Symbol): Similar to ™ but used for unregistered service marks indicating a claim to the mark for services.
- ® (Registered Trademark Symbol): Used for both trademarks and service marks that are registered with the USPTO.
Why the Symbols Matter
Using these symbols correctly informs the public of your claim to the mark, helps deter infringement, and reinforces your brand's identity and credibility.
How Do I Obtain Federal Registration for My Trademark or Service Mark?
The process to seek federal registration for either a trademark or a service mark is identical (and as mentioned, the same application can seek registration of both a trademark or a service mark).
The first step involves preparing and filng an application with the USPTO's Trademark Center. At that time, you will need to pay a filing fee based on the number of classes of goods/services that you are seeking to protect. At that time you either can file on an "intent-to-use" basis or "already in use" (in which case you will need to provide a specimen proving use).
After that, you wait for the application to be examined by a USPTO examiner attorney. They will deterime if the mark is eligible for protection, and that it does not seem to conflict with marks already registered by others. They will also detemine if there are any defects in the application paperwork.
Assuming that the application passes the examination phase, it is next published for opposition. This means that for a period of 30-days, anyone in the world can file to oppose the registration of your application.
If the application successfully passes the publication phase, it will either get a Notice of Allowance (if it was filed on an intent-to-use basis) or attain a Registration Certificate. A Notice of Allowance means that you have 6 months to file to prove that you have started to use the trademark or service mark in commerce. For more information on a Notice of Allowance, see our blog article on that topic - https://www.iveticlaw.com/how-to-transfer-ownership-of-a-trademark-when-you-re-brand-or-sell-your-business
Taking the Next Steps to Protect Your Brand
Understanding the difference between a trademark and a service mark is the first step in safeguarding your business's unique identity. Registering your marks with the USPTO ensures your brand is legally protected, creating a strong foundation for your business to thrive.The process can seem highly technical and confusing, but it does not need to be. An experienced trademark attorney can help you better understand the process as well as maximize the chances of a sucessful result.
Need legal assistance with trademarks or service marks? At Dragan Ivetic, Attorney at Law, LLC, we are versed in the trademark process, and have assisted clients from across the United States (and in several foreign countries) to attain their registrations. We thus would be happy to guide you through the registration process and protect your brand from potential infringement. Contact us today to schedule a consultation!
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