Trademarks and Service Marks - What's the Difference?

Trademark and Service Mark - are they the Same?

By definition - Yes! Section 45 of the Lanham Act defines a trademark as:

any word, name, symbol, or device, or any combination thereof -

1. used by a person, or

2. which a person has a bona fide intention to use in commerce and applies to register on the principal register.......

to identify and distinguish his or her goods.

The federal definition of a Service Mark is similar, substituting "services" where appropriate.

This is good news! One less definition to learn. However, a Trademark and Service Mark had different and distinct uses.

A business may only need a Trademark. A business may only need a Service Mark. A business may need both a Trademark and Service Mark.

When to Use a Trademark and Service Mark

Trademark

A Trademark is used when a business sells goods such as clothing, food, phones, computers, etc.

Service Mark

A Service Mark is used when a business provides a service.

How to determine if a business sells goods or provides a service?

Let's look at a few examples.

1. A Local Diner. Would a diner need a Trademark or Service Mark?

A diner would need a Service Mark. It's a service business. It's main function is to cook food for its customers.

However, if the diner had a special sauce and wanted to sell bottles of the special sauce, then the diner would also need a Trademark. The sauce is a good.

2. Coach (business, life, career, etc.). Would a coach need a Trademark or Service Mark?

A coach would need s Service Mark because the main function of the business is providing a service - coaching.

However, if the coach also sold downloadable content such as an ebook, then the coach would also need a Trademark.

3. Content Creator. Would a coach need a Trademark or Service Mark?

Similar to a coach. A content creator would need a Service Mark because the main function of the business is providing a service - creating content.

However, if the content creator also sold downloadable content such as Instagram or Facebook templates, then the content creator would also need a Trademark.

If you have questions about Trademarks and/or Service Marks email us at info@vwalkerattorney.com or contact us.