What is the difference between a trademark and a service mark?
When people generally use the term trademark they could be referring to a word, phrase, symbol, design, or a combination of these things that identifies a good or service. Therefore, people are commonly using the word “trademark” to describe two categories of intellectual property: trademarks and service marks. But because the two categories of intellectual property are so similar, people tend to refer to both using the general term “trademark.” Let’s go over the technical difference between the two.
Trademark vs. Service Mark
A trademark identifies and offers legal protection for the symbol, logo, phrase, word, design, or name that represents the source of goods or products. Examples of goods are: shoes, clothing, automobiles, jewelry, electronics, etc.
A service mark identifies and offers legal protection for the symbol, logo, phrase, word, design, or name that represents the source of a service. A service is something intangible that is provided for the benefit of another party. Examples of services are: a restaurant, a marketing agency, or a law firm. Thus, you could use the name of those companies as a service mark.
Let’s pretend that there is a company that wants to know their options when registering a trademark or service mark. In our hypothetical the company produces wine and has opened up a number of store fronts where the wine is sold. In this situation the company could try to obtain a trademark for the name and logo of the wine. The company could also try to obtain a service mark for the name and logo of the store.
To further illustrate the differences between trademarks and service marks let’s use the example of McDonalds. McDonald took the following actions:
McDonald’s – Service mark when referring to the business of servicing food.
Golden Arches Logo – Trademarks are used for logos
McNugget – Trademark because this item is a product not a service
McCafe – Service mark because this refers to a business that services coffee and other beverages
McCafe logo – Trademark for the stylized text and logo
Where does an individual go to obtain a trademark?
What is the USPTO?
The United States Patent and Trademark Office (USPTO) is the federal agency for granting U.S. patents and registering trademarks. In doing this, the USPTO fulfills the mandate of Article I, Section 8, Clause 8, of the Constitution that the legislative branch "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The USPTO registers trademarks based on the commerce clause of the Constitution (Article I, Section 8, Clause 3).
What is the difference between the ™, ℠, ®, and © symbols
You may have seen the above symbols behind a symbol, logo, phrase, word, design, or name and wondered what they mean. The symbols ™, ℠, ® pertain to trademarks while the © symbol refers to copyrights. For the purposes of this discussion, we will only discuss trademarks.
To register a trademark or service mark, an individual or company has to file an application with the USPTO. Before or during the time an individual or company submitted an application with the USPTO they may begin using the ™ on their mark to represent trademark and ℠ to represent service mark. However, it does not hold any legal significance.
Why would someone use the ™ or ℠ if there is no legal benefit to using them? It is the individual’s or company’s way of immediately communicating to the public that the word, logo, slogan, or phrase is claimed as your trademark or service mark. Again, remember that there is a first in time component to receiving a registered trademark from the USPTO. Thus, by using the symbols ™ or ℠ on a symbol, logo, phrase, word, design, or name you are claiming that you are first in time. That may help your application get approved by the USPTO.
Once an application to the USPTO is approved and federally registered, a trademark and service mark carries the standard registration symbol ®. "Reg U.S. Pat & TM Off" can also be used.
Benefits of a Trademark
There is a multitude of benefits.
All trademarks are listed in the USPTO database of registered and pending trademarks. This provides public notice to anyone searching for similar trademarks. They will see your trademark, the goods and services on your registration, the date you applied for trademark registration, and the date your trademark registered.
It you have an officially registered trademark you will have created a legal presumption that you own the trademark and have the right to use it. If you ever need to take someone to court for improper use of your trademark your registration certificate proves ownership.
Your trademark registration may be used as a basis for filing for trademark protection in foreign countries.
A registered trademark gives you the right to bring a lawsuit concerning the trademark in federal court.
You may use the federal trademark registration symbol, ®, with your trademark. This may help deter others from using your trademark.
Record your registration with U.S. Customs and Border Protection to help prevent the importation of goods with an infringing trademark.
In our next blog we will discuss how to go about choosing a strong trademark.
If you have any questions regarding trademark law or the federal process used to obtain a trademark, we would be happy to help.