A business name, company slogan or tagline, insignia, symbol or logo of the business may function as a trademark and is given certain legal protections when it is used in commerce to distinguish a good or service from the goods and/or services of another business. A strong, unique trademark represents a standard of quality and/or distinctive identity that can be associated with a particular business’ product or service. Trademarks can be seen, heard, and touched. They can be placed on signs, advertisements and marketing, product labels, product packaging and be communicated through media instantaneously to millions of people. Thus, a trademark is a form of trade identity for a business that, if properly promoted, can achieve enormous value.
Former Supreme Court Justice Felix Frankfurter stated, “A [trademark] is a merchandising short-cut which induces a purchaser to select what he wants, or what he has been led to believe he wants…The aim is to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears.” Safeguarding and/or protecting a trademark , which often becomes a very valuable asset of the business, is essential for protecting the identity of your company, service and/or product.
Trademarks vs Service Marks
While similar to a trademark, a service mark is slightly different. A trademark is used in connection to “goods,” while a service mark is used in connection with different types of “services.” A trademark may relate to a line of apparel, phone application, surfboard or skateboard, distilled spirit, or a unique vintage of wine. A service mark would relate to medical practice, law practice, accounting firm, engineering firm or business consulting firm. To help determine if you have a service mark, the USPTO developed the following criteria to determine if there is a service mark:
A service must be a real activity;
A service must be performed to the order of, or for the benefit of, someone other than the service mark applicant; and
The activity performed must be qualitatively different from anything necessarily done in connection with the sale of the applicant’s goods or the performance of another service.
Even with the small difference in the definitions, the same identical mark may be used as both a trademark and a service mark by the same business. Such is frequently the case when there is a business that is selling food and providing restaurant services under the same identical trademark.
Service Mark Overview
A service mark is a business name, company slogan or tagline, symbol or logo, or a combination thereof that identifies and distinguishes the source of a service rather than a good or product. In other words, a service mark is used by a business, professional or entrepreneur to distinguish its company’s services from those of its competitors. Service marks may also be employed to assert that certain services derive from a single source or business and are of consistent quality. Service marks, like trademarks, often reflect the trademarks goodwill and integrity of a particular business, which may be (or become) an extremely valuable asset.
In contrast to trademarks and service marks, a trade name generally functions to identify a certain business entity, whether a partnership, limited liability company, corporation or nonprofit, and to distinguish it from other business entities regardless of what goods, products, or services are offered.
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If you have a federal trademark matter, please send us an email, fill-out our online trademark registration form, or give one of our trademark attorneys a call.