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What is the difference between a trademark and a service mark?

Trademarks vs. Service Marks

You have probably seen the TM and SM symbols and wondered what they represent?  TM represents trademarks while SM represents service marks. Both are protectable under U.S. federal trademark law. 

What is a Trademark?

A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.

What is a Service Mark?

A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods.

Applying for a trademark and service mark?

When applying for a trademark or service mark you would have to use the same application form.  The application choice is not based on whether the mark is a service mark or a trademark for goods. Instead, the application process is based on whether you are currently using a mark or intend to use it in the near future.  The applications choices are either a 1(a) in-use application or a 1(b) intent-to-use application.

When applying for a mark under either a 1(a) or 1(b), the applicant is required to provide the class of goods or services that the mark is associated with interstate commerce.  The classes extend across 45 different classes of goods and services.  Classes 1-34 are designated for goods while 35-45 are designated for services.  This is the distinction between trademarks for goods and service marks.  Within both 1(a) and 1(b) applications, the applicant will make the designation for either goods or services.

Trademarks identify and distinguish goods from one company to another while service marks distinguish the services of one provider from another provider.  Service marks can be confusing as many products are bundled with services. For example, would McDonald’s be a service or product company? McDonald’s is considered a service company that includes its services of providing fast food products. However, McDonald’s – the service company may have many products that are also trademarked. The Big Mac® and McFlurry® are both trademarked products.

If you are a social media influencer, it’s most likely you will want to choose classes in the service category. Most likely filing in class 35 – Advertising & Business.  If you have a mark for a podcast, most likely you are filing in service class 41 – Education & Entertainment.

Hiring an experienced attorney who understands and is familiar with your business is important to ensure the trademark application is properly filed with the appropriate class of goods and services.

If you are successful in receiving a certificate of registration, both the trademarks and service marks will receive the same benefits under federal trademark law.

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