Quick answer: A trademark is a word, phrase, symbol or logo that is used to brand, identify, and distinguish a product. A service mark (or servicemark) is a word, phrase, symbol or logo that is used to brand, identify, and distinguish a service.
While this might seem straightforward enough, there are a few intricacies to iron out, and instances where you may need both a trademark and service mark.
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Service Mark Examples
A restaurant or retail store might deal in physical items, but they actually require service marks. The McDonald’s brand name is a registered service mark for restaurant services. Similarly, Walmart is a registered service mark for retail store services.
In contrast, if you sold a line of jewelry products or clothing products, then you would want to get a trademark for your product line. Tiffany & Co is a registered trademark for a line of jewelry products, and Nike is a registered trademark for a line of footwear and clothing products. Knowing how to properly protect your intellectual property with the U.S. Patent and Trademark Office can turn out to be critical for your business is someone ends up infringing on your marks later. (This is why we don’t recommend that businesses rely on common law trademarks)
Example: Service Mark vs Trademark
Let’s say you’re planning a family dinner and want to get a nice bottle of wine. The small wine shop you visit may have their name and logo registered as a service mark, as they’re providing the service of selling you wine. While there, the wine you purchase likely has its name and logo registered as a trademark, as it’s a physical product you can purchase.
Could You Need Both?
A few cases would call for both a trademark registration and a service mark.
Suppose FedEx came up with a new slogan: “Faster than a lightning bolt.” If FedEx used the slogan to brand its shipping and delivery services, it would be registered as a service mark. The delivery of items around the country is a service that the company provides. It is not a tangible good or product.
Now assume that FedEx decided to expand its product line by selling boxes and packaging materials. If the company were to put the lightning bolt slogan on those items, the phrase would become a trademark, because it brands an actual product being offered by the company. It’s all a question of context.
Trademark or Service Mark – More Examples
Let’s take a look at several well known marks registered by the McDonald’s corporation, and if they are a trademark or service mark.
|Item||TM or SM?||Why?|
|McDonald's||Service Mark||The name is a Service Mark when referencing the business of serving food|
|Golden Arches Logo||Trademark||Logos are registered as Trademarks|
|McNugget||Trademark||McNugget is a product, not a service - so it's a Trademark|
|McCafe||Service Mark||A Service Mark when referencing the business of serving coffee and other drinks|
|McCafe||Trademark||The stylized text logo for McCafe is a Trademark|
The Service Mark Symbol
Whenever a trademark or service mark is federally registered with the United States Patent and Trademark Office (USPTO), the owner of the trademark may use the registered trademark symbol, often referred to as the registration symbol, ®. It is unlawful for unregistered companies to use this symbol.
If the trademark or service mark is not federally registered, then the appropriate symbol for a trademark would be ™, whereas the appropriate symbol for a service mark would be ℠. In other words, if you are providing a product under a particular name or logo, then you may use the ™ symbol to signify that you are claiming trademark rights. If you provide a service instead of a product, then you may use the ℠ symbol for the same purposes.
What About Copyrights?
The other common form of protection is a copyright. Unlike trademarks or service marks, a copyright protects an original creative work, such as a book, a film, or a painting. If you’re a creator, you may want to read our guide on trademarks vs copyright. Keep in mind, even when talking about something that stems from a creative work covered under copyright law, you can still get a trademark for some aspects like a character or logos. The Harry Potter trademarks are a great example.
Registration: Trademark vs. Service Mark
The processes of registering a trademark and registering a service mark are virtually identical. First, you need to ensure that another company isn’t already using your mark. This can be done using the Trademark Electronic Search System (TESS).
After you’ve confirmed that the mark is, in fact, available, you’ll be set to proceed with the registration process. To do this, you need to carefully fill out the application form, taking into consideration the legal implications, and then file your application online.
Trademark applications require a nonrefundable fee, so it is vital that you complete the application correctly. The USPTO encourages applicants to consult with a skilled legal professional before proceeding, especially if they have doubts about their marks being accepted or if they are unfamiliar with the application process.
The Bottom Line
The line between a trademark and a service mark is often so thin that many companies simply end up having both. For example, Google lists its brand as both a trademark and a service mark. (We also created additional resources so you can read more about patents and copyrights.)
Ultimately, your concern should not be whether your company has a service mark or a trademark, but whether your mark is registered. That’s the best way to ensure that others don’t infringe on your mark. Working with an experienced attorney will increase your chances of success in you trademark/service mark registration process.
Feedback from Clients
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Founder & Owner of One Whimsy Chick