Businesses use names, logos, phrases, and other identifiers to help customers recognize the source of their products or services. Trademark and service mark law provides a legal framework for protecting certain identifiers and distinguishing one business from another.
Although the terms are often used together, there is a simple distinction between them: a trademark is generally associated with goods, while a service mark is associated with services.
What Is a Trademark?
A trademark is a word, phrase, symbol, design, or combination of these elements that identifies and distinguishes the source of goods.
For example, a company may use a particular name or logo to identify products it sells. Over time, customers may associate that identifier with the company that provides the goods.
Trademarks can apply to many different types of products. The important consideration is not simply whether something is a name or logo, but whether it functions as a source identifier for particular goods or services.
What Is a Service Mark?
A service mark performs a similar function but identifies the source of services rather than physical goods.
A consulting company, cleaning business, law firm, restaurant, software provider, or other service business may use a name, logo, or phrase to distinguish its services from those offered by competitors.
In everyday business conversations, people often use the word “trademark” broadly to refer to both trademarks and service marks. Legally, however, the distinction can matter depending on what is being identified.
Names and Brands
A business name can become an important part of its brand, but not every business name automatically receives the same level of trademark protection.
Trademark rights generally depend on how a mark is used and the goods or services with which it is associated. Similar names can sometimes coexist when they are used for sufficiently different goods or services, while similar marks can create conflicts when consumers could be confused about the source.
This is one reason businesses should consider trademark issues before investing heavily in a new name or brand.
Logos and Other Brand Elements
Trademarks are not limited to company names.
A business may seek protection for a logo or another distinctive element that identifies its goods or services. In some circumstances, other features of branding can also function as trademarks.
However, not every design or marketing element automatically qualifies for trademark protection. The legal analysis depends on factors such as how the element is used and whether it functions as a source identifier.
Trademark Symbols
Businesses commonly use symbols such as ™ and ® in connection with trademarks.
The ™ symbol can generally be used to indicate that a business is claiming a trademark in a particular identifier, even when the mark has not been federally registered.
The ® symbol is different. It is used in connection with a federally registered trademark and should not be used as though a mark were registered when it is not.
Businesses should use these symbols accurately and understand that using a symbol by itself does not establish trademark rights.
Common-Law Rights and Federal Registration
Trademark rights in the United States can arise from use of a mark in commerce, subject to applicable legal requirements. Federal registration with the U.S. Patent and Trademark Office can provide additional rights and legal advantages.
Registration can also make it easier for businesses to publicly establish their claim to a mark and may provide tools for enforcing trademark rights.
However, registration does not automatically mean that every possible use of a similar name is prohibited. Trademark rights are connected to the specific mark, goods or services, and other legal considerations.
Choosing a Business or Product Name
Trademark considerations are worth addressing before launching a new brand.
A business may check existing federal trademark records and other relevant sources for similar marks. It should also consider how the name will be used, what goods or services will be associated with it, and whether there are existing businesses using similar identifiers.
A basic internet search can be useful, but it is not a complete trademark clearance search.
For an important new brand, a qualified trademark professional can help evaluate potential conflicts before the business invests significant time and money in the name.
Trademarks and Online Businesses
The growth of online commerce has made trademarks relevant to businesses of all sizes.
A company may use the same name across its website, social media accounts, online marketplaces, advertisements, packaging, and digital content. A distinctive brand can therefore become closely connected to how customers find and recognize the business online.
At the same time, businesses should be careful when using names, logos, or other identifiers belonging to someone else.
Conclusion
Trademarks and service marks help distinguish the source of goods and services in the marketplace. A trademark generally identifies goods, while a service mark identifies services, although the term “trademark” is often used broadly for both.
For business owners, understanding this distinction is only the starting point. Choosing a name, developing a brand, using logos, and considering federal registration can all involve additional trademark questions.
Because trademark rights are fact-specific, businesses making important branding decisions should verify the applicable requirements and consider professional advice when a potential conflict or significant investment is involved.
Suggested SEO Title: Trademarks vs. Service Marks: A Guide for Businesses
Meta Description: Learn the difference between trademarks and service marks, how they relate to brands and business names, and what business owners should know.
