24-Jun-2021
written by: Hana Bishara
Trademarks and service marks both identify the providers of goods or services. However, many people confuse the two because they are closely related.
While a trademark is used to designate products and identifies the source of goods, a service mark is used to designate the provider of services. A service refers to an act or deed performed for another person (A “service” consists of something intangible provided for the benefit of another party rather than offering a physical product).
Typically, trademarks appear on the actual product or its packaging. Service marks appear mostly in advertising for the services.
Despite the distinction, the term “trademark” is commonly used to describe both forms of such intellectual property rights; businesses typically use both marks.
A trademark is specifically a creation to identify a business product. A trademark includes without limitation: names, signatures, words, designs, a smell, a sound, symbol, device, shape of goods, their packaging, or any combination which is used or intended to be used to identify and distinguish the goods of one company from those of others.
A service mark is very similar to a trademark, except that it is used to distinguish services in the stream of business. Like a trademark, a service mark can include words, names, symbols and logos. Service marks are often slogans.
In order to help you differentiate between service marks and trademarks we hereby represent some examples:
Two of the most recognizable companies in the world are United Airlines and Apple. Apple offers a wide range of products such as iphones and MacBooks. Its Apple logo is a trademark, not a service mark, because it's located on physical products. The name "United Airlines" is a service mark because it represents services provided such as airline flights around the world.
On one hand, some other examples of service marks include amazon.com, Walmart since they offer online and on ground services respectively; while some global trademarks include the swoosh logo that Nike features on all of its products and Coca-Cola’s bottle shape as well as the graphic representation of their name.
On the other hand, some entities use both service marks and trademarks such as "McDonald's" which is a service mark since the company offers food and restaurant services, and McDonald's signature golden arches are considered a trademark, as they are used to brand specific products.
In order to register a trademark or service mark, an application must be submitted with the Patent and Trademark Office; When the registration is approved, the entity may legally mark the product or service with the registered trademark symbol, ®. Using this symbol without registration is illegal.
Registration greatly enhances the value of the legal entity ‘s brand. A trademark or Service mark’s owner enjoys significantly greater rights and protections for a registered mark than for an unregistered mark. In some jurisdictions, trademark registration is mandatory to be granted rights over a trademark, as it is a "first to file" jurisdiction. Only in some exceptional cases can an unregistered trademark be protected.
Before registering the trademark or service mark, the legal entity must be able to show that its business is the owner of the mark. The company should also be sure their trademark or service mark is not similar to an existing one.
The pre-filing search and background checking is primordial to prevent any future conflict and as a failure to properly search existing trademarks, once you have filed for registration of your new mark, it may be liable for revocation if the existence of a similar pre-existing mark comes to light. This evidently poses a significant waste of time and resources for your business.
This means that a lack of awareness surrounding these searches could hamper the exclusivity and value of your mark.