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.

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