April 15, 2024

Fundamental to understanding your intellectual property rights is first understanding the terms used in the law and how they apply to your situation. This blog discusses the difference between a service mark and a trademark. While the two terms are often used together and interchangeably, it is important to know how they are distinct and how they can protect your business brands, names, logos, and other identifiers. 

Trademarks identify the “source of goods.” In contrast, a service mark is used to link a provider to a service. 15 U.S.C. §1127. In practice, however, many people use “trademark” when referring to both forms of intellectual property. 

A service mark is defined as “any word, name, symbol, or device, or any combination thereof” that is “used by a person” that has a “bonified intention to use [the service mark] in commerce.” 15 U.S.C. §1127. A service mark identifies and distinguishes the services of one business from those of another and identifies the source of those services. Similar to trademarks, a service mark can be a name, logo, slogan, or other combination of these that signifies the source of service. 

Take, for example, a dog walking company. The business may use a logo of a person walking with several dogs on leashes. This logo would be a service mark because it identifies the dog walking service. However, if the dog walking company develops its own dog collars, water bowls, and leashes, and identifies them with their logo, then that logo would be considered a trademark because it identifies goods of the company instead of the services. 

Like trademarks, service marks are a type of intangible intellectual property that can be protected through proper registration. For example, registering your service mark can help prevent misuse of the mark by others, including theft. The United States Patent and Trademark Office (“USPTO”) is the federal agency that handles service mark applications. Be sure to register your mark as service mark instead of a trademark. If not, you run the risk of the application being rejected. 

When your service mark is pending registration, you can use the “℠” in superscript with your mark. After your service mark is registered with the USPTO you can then use the circle R “®” with your mark. To be clear, the “®” can only be used after you have fully, properly, and officially registered your service or trademark with the USPTO.    

But, there’s a twist! As we’ve discussed, trademarks are associated with goods while services marks are associated with services — then why do we use the “®” for both trademarks and services marks? That is because a service mark falls under the larger umbrella of a trademark because trademark “identifies the source of your goods and services,” as defined by 15 U.S.C. §1127 of the United States Code on Trademarks. 

Like trademark registration, your business can benefit from registration of your service mark. Registration with the USPTO sends a clear message to others that you have rights to the mark and “legal presumption of ownership” in the United States. 15 U.S.C. § 115; Legal Information Institute: Trademark Registration. Investopedia provides some good additional information about special considerations for and the benefits of protecting your service mark. 

Take the next step in protecting your brand. Schedule an appointment with MJ Vuinovich of Flagstaff Law Group, PLLC, at (928) 233-6800 or reception@flaglawgroup.com. Se habla Español

 

The information provided in this blog post does not, and is not intended to, constitute legal advice; instead, all information, content, and materials are for general informational purposes only.  Information in this blog post may not constitute the most up-to-date legal or other information.  This blog post contains links to other third-party websites.  Such links are only for the convenience of the reader, user or browser; Flagstaff Law Group, PPLC, and its members do not recommend or endorse the contents of the third-party sites.