by Traverse Legal, reviewed by Enrico Schaefer - November 12, 2011 - What is a Trademark or Service Mark?
Welcome to Trademark Law Radio, a top web resource on issues of trademark infringement, trademark licensing, trademark protection, and trademark registration.
This is Brian Hall, a trademark attorney with Traverse Legal, PLC, a trademark law firm representing trademark applicants, trademark registrants and those looking to enforce their intellectual property throughout the United States and the world. Today, I will be answering the question: What is the difference between a trademark and a service mark? The short answer is not much. However, let’s look at them individually.
A trademark identifies the goods that are associated with the particular mark, whereas a service mark identifies the services that are associated with a particular mark. The requirements to acquire either a trademark or service mark are the same. You have to use a distinctive mark in interstate commerce. Those are two requirements.
The first is the use requirement. In order to use a trademark, you need to be making a bona fide use of that mark on the good, in the sense of a trademark, or on the service, in the sense of a service mark. While it sounds inherently simple to use it on a good, it doesn’t always sound so simple when using it in connection with a service, which is why one of the requirements, when applying for a trademark or a service mark, is to show what’s known as a specimen.
A specimen provides an example to the USPTO examining attorney of how you’re actually using your mark in connection with either the goods or the services. And because of that distinction between a trademark and a service mark, the specimen required is also going to differ. For example, in order to show use of a trademark, you can provide use of the mark on the good itself, on packaging associated with the good, or even on a hang tab or label. However, you cannot provide that similar specimen when you’re showing use of a service.
Therefore, when you’re going to apply for a service mark application with the USPTO, the specimen, oftentimes, is a print out of a website or a brochure, a flyer or something else showing use of your mark in connection with the services you are going to provide under that mark. So, the specimen is going to differ depending upon whether or not you’re pursuing a trademark or a service mark.
Besides the specimen, once the mark is registered, the other thing that is different is the ability to use an SM versus a TM. A TM refers to a trademark, whereas a SM refers to a service mark. However, both of those monikers go by the wayside upon registration because you should be using the registered ® symbol once registration occurs. However, it is important to recognize that until that registration certificate is received from the United States Patent and Trademark Office, you cannot use the registered ® symbol. Instead, you are limited to the TM symbol for a trademark, or the SM symbol for a service mark.
So, to recap, the differences between a trademark and service mark aren’t very substantial. While it is important to know the differences when applying for a trademark registration, the actual use of the marks doesn’t vary depending upon whether or not it is a trademark or service mark.
So, once again, this has been Brian Hall, answering your question: What is the difference between a trademark and service mark?
You’ve been listening to Trademark Law Radio. Whether you are facing a trademark infringement, licensing, monitoring or trademark registration issue, we have a trademark attorney ready to answer your questions.
As a founding partner of Traverse Legal, PLC, he has more than thirty years of experience as an attorney for both established companies and emerging start-ups. His extensive experience includes navigating technology law matters and complex litigation throughout the United States.
This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by attorney Enrico Schaefer, who has more than 20 years of legal experience as a practicing Business, IP, and Technology Law litigation attorney.
