A business relies on identifiable items like words, sounds, logos, and color schemes for building its brand. When such an item has been established as exclusive to a specific brand, it needs to be protected from unauthorized use by others. That’s when it becomes essential to register a service mark or a trademark. Knowing the differences between the two can help you choose the right mark for your existing situation and need.
Let’s understand trademarks
When a legal professional talks about trademarks, he/she is simply referring to the process that goes into creating an identity for a product or service. Trademarks can take the shape of devices, names, words, symbols, or any mix of these, as long as they’re able to distinguish the offerings of one business from others. Some also use the term ‘brand names’ as an alternate to trademarks. For instance, a car cleaning product may have “spotlesspolish” as its feature and ‘spotless’ as its trademark.
Let’s understand service marks
A service mark is similar in nature to a trademark, but it’s exclusively used to differentiate the services of one firm from those of another organization. These often take the shape of slogans. For instance, a restaurant’s service mark might be ‘the Sushi experts’ featuring or missing a separate logo. Confusion may occur when services come bundled with physical products. Take KFC for instance. Is it a service mark or a trademark? Within their service of being – the chicken experts – the KFC Corporation also have several products that are trademarked, like ZINGER.
How to differentiate a product from a service?
According to the National Archives, one great way to differentiate between services and products is to factor in the customer. If they ask, ‘what can your company do for me?’ it’s likely a service. If they ask, ‘what can your company make for me?’ there’s a high chance that you’re dealing with a product, which can also be digital items. Services, on the other hand, include offering advice, delivering speeches, training, consulting and teaching in the field of services.
What’s better to register?
For those concerned with IP or Intellectual property, know that it’s managed in the same way as other property types, apart from the fact that the IP must be registered to tell people about who is the real owner, as well as refraining others to use the concepts without monetary compensation or permission. However, service or trademarks can be used long before registration occurs. Of course, proper registration will help prevent issues should someone uses an identical mark or attempts to steal yours.
How about using both?
A few instances can demand the registration of both a service mark and a trademark. Assume DHL labelled its new service as ‘quicker than the rabbit.’ If the courier giant used the phrase to promote its delivery and shipping services, it’s going to be called a service mark. The global delivery is a service being offered by a company. It’s not a physical item or good. In contrast, if DHL expands its product line by introducing newly designed boxes and puts an aesthetic-related slogan on these boxes, it’s going to be a trademark, as it’ll be branding a real item offered by the courier organization. It’s about context.
Symbols of service marks and trademarks
When someone registers the service mark or trademark with the USPTO (United States Patent and Trademark Office), the trademark’s owner may suggest using a symbol for the trademark, usually referred to as ® – the registration symbol. It’s not legal for other companies to utilize the symbol in their branding once it has been registered.
But if the trademark or service mark has not been registered federally, the relevant symbol should be TM. For the service mark, the symbol should be SM. So, if a product is being offered under a certain logo or name, the TM symbol can be used to tell everyone that the trademark rights have been claimed. SM can be used for a similar purpose if you’re offering a service instead of an item.
How to register a service mark or trademark?
US Patent and Trademark Office has the authority to register service marks and trademarks. While the registration can be carried out by an entrepreneur himself/herself, the process can be a bit complicated. And there’s the risk of your application getting rejected because you made a minor mistake. Attorneys who specialize in protecting intellectual property can help in this regard.
Also, it’s important to show that you’re the business owner of a mark before a registration request is made. Plus, it’s also a requirement to show that you’re currently using the mark on your offerings.
Service marks can also be registered, with the same trademark process, but you’ll have to designate the mark as a service one.
What about the costs of registration?
Usually, a non-refundable fee is deducted when you file a trademark application, so it’s essential to things correctly. In fact, the USPTO advises people to hire a skilled professional before they take any action, especially if they aren’t sure if their marks will be registered or the application process confuses them.
What about copyrights?
Another popular type of brand protection is ‘the copyright’. In comparison with service marks or trademarks, copyrights protect original artwork against duplication. The copyright could be for a painting, a book, or a film.
As evident, there’s a lot of resemblance between trademark and service mark, but each serve a different purpose, and should be registered accordingly. So, if you’re out there to register for a service your company provides, it’s going to be a service mark. Newly introduced products, on the other hand, will be better off with an official company trademark. Either way, registering these marks is a great way to ensure that others are not infringing on your rights. You may even consider taking the services of an experienced legal professional to deal with the registration.