What is the Difference Between a Trademark and a Service Mark?23-05-10
What is the Difference Between a Trademark and a Service Mark?
Unless you have already used these two types of intellectual property, you may not be aware of their differences. A bank such as Citibank may use a service mark on unique services rendered and a trademark on a product launched by the bank, the CITIBANK PERSONAL ASSISTANT trademark for example, which is both a trademark and a service mark at the same time. It is a trademark protected on Class 9 as a product sold and branded by the bank and on Class 36 as a service, a personal assistant for Citibank clients.
Similarly, Walmart uses the Walmart logo on all of its retail stores and signage and has registered it as a service mark on classes 35, 36, and 39. Therefore, it has the trademark Walmart Beauty Favorites on Class 3 which relates to the beauty boxes assembled and sold under the brand. The differences between a service mark and a trademark are very subtle, and consumers do not pay attention to them, but when you are protecting your brand, it is crucial to identify what you will use the brand on and clearly define if it is a service mark or a trademark.
People usually interchange service marks and trademarks, but this is not necessarily healthy from an IP and strategic portfolio-building perspective.
Is a service mark a type of trademark?
The term "service mark" refers to a mark or brand protected on a service: in one of the service classes of the Nice Classifications, or service provided for a fee and is not included in the packaging. A major carpet cleaning company would likely use a service mark in its marketing campaigns to promote its services, as the service is provided, rather than offering a tangible product if they do not provide any carpet cleaning products. A federally registered service mark has the registration symbol (R), which is equivalent to the superscript “SM”.
A service mark may be confusing to understand, as many products are combined with services. For example, a car may come with roadside assistance and maintenance. A company may also trademark its fast food products, such as the Big Mac. A service mark is less difficult to understand, but consumers don't often know the difference. This makes it hard to decide which to use. Therefore, it's important to understand the difference between a trademark and a service mark.
What is a trademark?
A trademark can be a brand or business name which is registered, renewed, or maintained in the intellectual property office of the country the business operates. In many countries, a company can register a trademark for a single word or phrase central to its identification. Elon Musk, the founder of SpaceX and Tesla, is a prime example of a visionary leader who has efficiently and effectively trademarked the brands he is leading. He has historically supported the development of digital goods and is an avid supporter of intellectual property assets.
A trademark can be a word, symbol, or design that identifies a specific product or service. It can be unique and distinguishable from a product or service offered by others. It is often protected under federal and state laws. Trademark registration allows businesses to secure their name, which is valuable for their future marketing strategies. Trademark registration can also help protect a business name against confusingly similar names. It is important to check for similar names and trademark searches before you register your own.
A trademark can protect a company's name (also referred to as the trade name) or brand and make it easy for competitors to identify it.
What is a tradename?
A tradename is the legal name of the legitimate entity you set up to conduct your business. The tradename can be identical or different from the trademark.
For example, Apple owns a trademark apple for computer products, and the tradename of the company is also Apple Inc.
If a company is registering its tradename as a trademark, it can decide to include its corporate structure within its trademarks. For example, in Apple's case, it would have registered the trademark as Apple Inc. While this is possible, it is limiting, especially if you are in the early days and your business structure might change. For example, if you choose to transform your company from an LLC to a Corporation. So as a general suggestion, if you are looking to protect your trade name as a trademark, try not to include the legal structure of the company.
Is a tradename automatically a trademark?
A tradename is not a trademark unless you specifically file the tradename as a trademark application and obtain a trademark registration. A tradename is very different from a trademark. There are distinct registries for tradenames by state and country, and other requirements to get a company formed and get a tradename.
What is a trade dress?
Trademarks and service marks protect intellectual property, a brand used on a service. A service mark and a trademark can also preserve a trade dress. A trade dress is a combination of non-functional attributes used to identify a business's goods and services. Using either of these types of marks can lead to monetary damage if the trademark or service is violated. Service marks can be used to distinguish between goods and services and can also be a powerful marketing tool for businesses.
Why are trademarks vs. service marks important?
Starbucks sells coffee products under its name. However, the company must choose the type of mark that best represents its business because making the wrong decision may alter the definition of the business. Service marks are applied in the same way as trademarks, but the difference between them is not as clear. Trademarks are issued for goods and service-related products and services, while service marks are granted to the service itself.
Trademarks and service marks are two different types of marks. Trademarks protect the name of the business in the marketplace, and service marks protect the source of a service. A service mark is also a word, symbol, or domain name used to identify the source of a particular service. As a result, the two terms are different in protection and use. Whether a service mark is registered or unregistered depends on the purpose of the mark, and both require registration with the USPTO.
Is there a similarity between trademarks and service marks?
A trademark is a brand identifier for goods and services. Its use is similar to that of a service mark. In most cases, a service mark is a subclass of a trademark.
Another way to think of the similarity between a trademark and a service mark is to consider whether the two are similar in context. A service mark describes a product or service a business provides, while a trademark represents the actual product. A plumber might register a service mark, such as 'Leak Fixers', for his plumbing business. If the plumber registers a service mark, he prevents others from using it for the same product or service. Similarly, companies like Facebook, United Airlines, and American Express use service marks to distinguish their products and services from the competition. Although the differences between a service mark and a trademark are minor, they serve the same purpose: to distinguish and differentiate a business from competitors and provide a competitive edge.
Trademark registration getting started:
As a start, once you identify the business you have, you need to decide:
- The name you will use as a brand for consumers to identify your business.
- Decide what the business will be doing and what the brand will be used for:
- Will you have a retail store and provide retail store services?
- Will you build an app and provide software solutions?
- Will you build software and provide software as a service?
- Will you develop your unique beverage and sell it in supermarkets?
- Identify what classes your products and/or services fall under.
- Identify the type of trademark you would like to protect:
- Choose what country you will operate in.
- Prepare the documents required.
- Start the filing process.