Trademark v. Service Mark

*Photo by Akira Ohgaki is licensed under CC 2.0. *

A trademark and a service mark are essentially the same thing, so much so that the word “trademark” is often used to refer generically to both. While there is a technical distinction between the two, the legal protections afforded each are essentially the same.

Trademark v. Service Mark

The difference between the two lies in the underlying reference of the mark: a trademark distinguishes certain goods from other goods in the market while a service mark distinguishes certain services from other services in the market. Otherwise, the two are the same.

Again, the legal protections afforded each are essentially the same. Holders of both types of marks enjoy the exclusive right to the use of that mark in their markets, and those holding both types of marks can file infringement suits. Essentially the only difference is whether the underlying “product” offered is a good or a service.

On a practical level, you may be able to tell the difference between a trademark and a service mark—or at least the owner’s understanding of that mark—by the small designation next to the mark in advertisements. Companies claiming a trademark will often include the acronym “TM” next to their mark, while those claiming a service mark will often use the acronym “SM.” Once registered with the United States Patent and Trademark Office, however, both types of marks will simply have the ® designation next to them.

Goods v. Services

So, once we have established the difference between a trademark and a service mark, the question naturally becomes, “What is the difference between a good and a service?”

The differences between the two are relatively straightforward and simple—though in practice the two can sometimes be overlapping and difficult to distinguish. Goods are tangible products. So, light bulbs and furniture are examples of goods that would lend themselves to the use of a trademark.

Services are activities performed on another’s behalf or for someone else. So, a housekeeping business or perhaps a law firm would offer services that could lend themselves to service mark claims.

So, if you are an entrepreneur operating a business and trying to determine whether you are offering a good or a service, you should consider whether your customers pay you for a tangible product—something you give them that they can take home with them—or a service—something they pay you to do.

Obviously these definitions are imperfect, but I believe they convey the underlying idea.

USPTO Registrations

Determining whether you offer a good or service and what type of good or service you offer is important when applying to register your mark—whether a trademark or service mark—with the USPTO, as you must identify the type of goods or services with which your mark is associated.

You must further identify the goods and services according to the USPTO’s organization scheme. This should be done very carefully, as it can impact the registrability of your mark and the types of protections that your mark will receive.

While the list of acceptable identifications is extensive, it is possible that none of the descriptions will fit with your particular good or service. You should not simply choose the one that fits the closest.

If there is no description on the list that accurately describes your goods or services, you must create your own description. This description must be clear and concise such that the general public could easily understand it. Simply listing “miscellaneous services,” for example, will not satisfy this requirement.

This can be a difficult and confusing part of the process and is one of the reasons most people choose to hire a trademark attorney to help them through the process.

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Sources:

Protecting Your Trademark: Enhancing Your Rights Through Federal Registration

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See Also:

Registering Your Trademark

The Basis for a Trademark Application