Trademark vs. Service Mark

By Rachel Moran

Trademarks and service marks serve essentially the same purpose, but there are slight differences in how they're applied and communicated to your market. Both are administered by the United States Patent and Trademark Office. This agency processes registrations for trademarks as well as service marks. Registration isn't mandatory, but it provides additional legal protection in certain situations.


Trademarks and service marks may include words, phrases, symbols, images or devices that identify the source of an offer to a market. A trademark identifies the source of hard goods or tangible items, while a service mark identifies the source of services.


The U.S. Patent and Trademark Office uses the terminology "trademarks" and "marks" synonymously to refer to both trademarks and service marks. If you choose to assert your trademark or service mark with a symbol, you don't have to register it. You may use the symbol "TM" for a trademark or "SM" for a service mark. You can use the "®" symbol only if you have formally registered your mark and the PTO has granted your application.

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You establish rights to trademarks and service marks by using them. Registration affords additional protection, but it doesn't guarantee that others won’t also use your mark. The best way to protect your marks is through a combined strategy of commercial use and registration; however, use alone establishes rights. You might use your marks in the packaging of goods, advertisements, promotions, branding and marketing materials or business communications, including letterheads, envelopes and invoices.


Use your marks in conjunction with what you are identifying. If there's not a clear nexus between the mark and your goods or services, you might not be satisfying the legal requirement to establish your rights. This can be somewhat trickier for service-based businesses. Avoiding confusion is important. If someone disputes your use of a mark, or if you dispute someone else's use of a mark you claim, it's always prudent to consult with an attorney experienced in trademark law.

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How Do I Know If I'm Violating a Trademark?


Related articles

Registered vs. Unregistered Trademark

When you register your trademark with the U.S. Patent and Trademark Office, you get automatic legal protection against the use of your mark without your permission, an act known as "infringement." However, a trademark doesn't have to be registered with the USPTO to qualify for legal protection. If you're the owner of an original, unregistered trademark, you might be able to take legal action against an infringer. If you win an infringement case, you're entitled to money damages from the other party.

How to Trademark a Product Before It Exists

The only way to establish trademark rights is to actually use the trademark in commerce. If your product is not ready for the marketplace, you do not have any trademark rights related to the product. However, if you are within 18 months of marketing your product, you can file an "intent-to-use application" with the U.S. Patent and Trademark Office to establish yourself as the first to use the trademark.

How To Trademark Something

A trademark is a mark, symbol or combination of words that distinctively identifies a product or service -- McDonald's Golden Arches, for example. Trademarks have economic value because they represent the business reputation of the products they represent or the company with which they are identified. Registration of your trademark with the U.S. Patent and Trademark Office allows you to obtain nationwide protection, sue in federal courts and qualify for international protection.

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