Trademarks and Service Marks - What's the Difference?

Registered trademark symbol
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Trademarks and service marks are two versions of a kind of intellectual property - knowledge property. The assert your ownership of these marks, logos, and slogans, and they help you protect them from being stolen.

Most businesses have some kind of identification that makes their business stand out, both for advertising purposes and for general business purposes. These identifiers are trademarks or service marks.

What is a Trademark?

A trademark is specifically a creation to identify a business product. A trademark can be any word, name, symbol, or device, or any combination which is used or intended to be used to identify and distinguish the goods of one company from those of others. In short, a trademark is a brand name. For example, a product which cleans windows might have "sparklebrite" and a sparkler as its trademark.

The trademark may or may not include a logo (a graphic). Logos are always trademarked.

What is a Service Mark?

A service mark is the same type of device as a trademark, but service marks distinguish the services of one company from those of another provider. Service marks are often slogans. For example, the service mark of a plumber might be "The Leak Fixers" with or without a distinctive logo. 

What is the difference between "TM" and "SM" and ®?"

The TM and SM designations are placed with trademarks and service marks to show that the owner has started the registration process. The "R-in-a-circle" symbol designates a trademark or service mark that has been registered with the U.S. Patent and Trademark Office (USPTO).

Just placing a symbol on your product or service won't guarantee protection. To have full legal protection for your trademark, you must complete the registration process.

Is it a Product or a Service?

Service marks are sometimes confusing, and many products are bundled with services. For example, buying a car might mean you are also buying services, like maintenance or roadside assistance. For example, is McDonald's a service or a product? McDonald's the company is a service. Within that service - providing fast food - the company may have many products that are also trademarked. The Big Mac® is a trademarked product. 

The National Archives suggests one way to distinguish between a product or a service is to consider the customer. If the customer asks, "What can you make for me?" it's probably a product. (They also note that products include digital products.) If the customer asks, "What can you do for me?" it's probably a service. They include consulting, providing advice, training, and education in the category of services.

Many companies have both trademarked products and service-marked services. For example, a big company like McDonald's has a trademark on its "Golden Arches" logo, a trademark on individual products like the Big Mac, and a service mark on the business itself.

Do I Have to Register a Trademark or Service Mark? 

Intellectual property, sometimes abbreviated as "IP," is handled in the same way as other types of property, except that these assets must be registered somehow so it's clear who owns them, and to prevent others from using this property without permission or payment. You can use a trademark or service mark without registering it. But registering it protects it from issues if someone tries to use your mark or uses a similar mark. 

How Do I Register a Trademark or Service Mark? 

Trademarks and service marks are registered with the U.S. Patent and Trademark Office. You can do the registration process yourself but it's complicated. You may go through the entire process only to find your application rejected because of a minor error. It's best to find an intellectual property attorney who can help you through the process. The cost of registering a trademark or service mark depends on the complexity of the mark.

Before you register the trademark or service, you must be able to show that your business is the owner of the mark and that it is currently being used in your business. You should also do a search, using the USPTO's TESS service, to be sure your trademark or service mark isn't close to an existing name.

To register a service mark, use the trademark process, designating the mark as a service mark for services. To show the use of the service mark, the USPTO says, use specimens such as "signs, photographs, brochures or advertisements that show the mark used in the sale or advertising of the services."

If you sell your products or services on the internet or internationally, you should also register your trademarks or service marks internationally, through the World Intellectual Property Organization, using the Madrid system.

Protecting or Selling Your Trademark or Service Mark

After you get your trademark or service mark, you must actively and continuously protect it by monitoring the internet to be sure no one else is using it. If you don't follow up on misuse, you can lose your rights to the trademark.

Like other business property, trademarks and service marks can be bought and sold, or they can be licensed to others for things like apparel or advertising giveaways.