Trademark vs. Service Mark

By Laura Payet

Trademark vs. Service Mark

By Laura Payet

A trademark is a word, symbol, design, logo, or some combination thereof that identifies the source of goods sold in commerce. A service mark is the same thing, but it identifies the source of services. Trademarks and service marks are intellectual property, which is a type of intangible business asset that also includes patents, copyrights, and trade secrets. Both distinguish your goods or services from those of your competitors. And you can register both with the United States Patent and Trademark Office (USPTO), which provides you with the greatest protection against others stealing or copying your marks.

Examples of Trademarks and Service Marks

Trademarks are for products, while service marks are for services. But sometimes it can be confusing as to which is appropriate. This confusion isn't helped by the fact that the USPTO uses the words "trademark" and "mark" to refer to both trademarks and service marks. In addition, sometimes a business needs both. Here are some examples:

  • TurboTax is a trademark applied to tax preparation software, but Turbotaxlive, which applies to tax preparation services, is a service mark.
  • McDonald's is a service mark because it refers to a restaurant. Big Mac, however, is a trademark that identifies a particular burger.
  • The Starbucks name and logo are service marks when used on coffee shops but trademarks when used on packaged coffee.
  • MasterCard is a service mark used for credit services.
  • The Nike swoosh and the phrase "Just Do It" are trademarks.

Protecting Trademarks and Service Marks

Your trademarks and service marks are valuable to you because they tell your customers that your goods or services are genuine and that they come from your business. When you use your mark regularly, you establish ownership rights in it that allow you to prevent others from using it for similar goods or services without your permission. For instance, you may wish to use your mark on packaging, in promotions and advertisements, in branding and marketing materials, and on business letterhead, envelopes, and invoices. To indicate that you are claiming trademark rights in a name, logo, phrase, or design, use the TM symbol (™) in conjunction with it. Use the SM symbol (℠) to indicate a service mark.

When you have ownership rights in a trademark or service mark, you have the legal right to prevent others from using your mark or one that is confusingly similar on similar goods or services. This is known as trademark infringement. Registering your mark with the USPTO coupled with using it regularly is the best way to protect it—registration establishes your priority of use over your competitors and puts other businesses on notice that you claim ownership of your mark. It can also help you to recover damages in a lawsuit. Once you register your mark, you can use the R in a circle symbol (®) to indicate federal registration. But note that you cannot legally use this symbol unless the USPTO has approved your registration application.

USPTO Registration of Trademarks and Service Marks

The process for registering both trademarks and service marks with the USPTO is essentially the same. First, you should conduct a search of existing marks and pending trademark applications to be sure that your mark isn't already in use. You can conduct an online search using the USPTO's trademark database. You can then apply for registration online through the USPTO. But the process is complicated, time-consuming, and expensive. You may want to consult an us for assistance, which can include the opportunity to consult with an experienced attorney for a flat fee.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.