Trademarks and Service Marks

A trademark is generally a word, phrase, symbol, or any other design that identifies and distinguishes the source of goods from one party to the next in the marketplace. In other words, a trademark tells the consumer where a product came from thereby ensuring consistent quality of goods and strength in the connection between consumers and brands. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than goods. Generally, the terms “trademark” and “mark” refer to both trademarks and service marks.

Distinguishing Goods And Services

Goods are products, such as surfboard or teapot. Services are activities performed for the benefit of someone else, such as surfboard rental services or tax preparation. The difference between goods and services might be confusing. Are your customers paying for a product or paying you to perform a specific activity? If your customer is paying you for a product, such as a surfboard or teapot, then you have goods. However, if your customer is paying you to perform an activity, such as surfboard rental or tax preparation, then you have services. In an application for trademark registration, you may list both goods and services. Trademark registration is based on “use in commerce,” that is, you must be using the mark in commerce on all the goods/services listed. If you are filing based upon a “bona fide intent to use the mark,” you must have a good faith or bona fide intent to use the mark on all the goods/services listed.

What is Trade Dress?

Trade dress is the design of a product (shape or configuration), the packaging in which a product is sold, the color of a product or of the packaging it’s sold, and the flavor of a product If a feature of the trade dress is essential to the use or purpose of the article or if it affects the cost or quality of the article then the trade dress is functional and cannot serve as a trademark. Trade dress may be used in connection with goods and services.

What is a Trade Name? Can a Trade Name be a Trademark?

The name by which a company does business is known as a Trade Name (also called a dba- “doing business as” or fictitious business name). Depending on location, a trade name is registered through the county clerk office or state government. A trade name is distinguished from a trademark or service mark in that a trade name does not afford any brand name (trademark name) protection or provide exclusive rights for the use of that name. The Trademark Act defines “trade name” and “commercial name” as any name used by a person to identify his or her business or vocation and will not register trade names, generally.

Do Trademarks, Copyrights, And Patents Protect The Same Things?

No. Trademarks, copyrights, and patents protect different types of intellectual property. A trademark typically protects brand names and logos used on goods and services. A copyright protects an original artistic or literary work. A patent protects an invention. For example, if you invent a new kind of vacuum cleaner, you would apply for a patent to protect the invention itself. You would apply to register a trademark to protect the brand name of the vacuum cleaner. And you might register a copyright for the TV commercial that you use to market the product.

When Do You Use the trademark symbols TM, SM, and ®?

If you claim rights to use a mark, you may use the “TM” (trademark) or “SM” (service mark) designation to alert the public to your claim of ownership of the mark, regardless of whether you have filed an application with the United States Patent and Trademark Office (USPTO). However, you may only use the federal registration symbol “®” after the USPTO actually registers a mark, and not while an application is pending. You may only use the registration symbol with the mark on or in connection with the goods/services listed in the federal trademark registration. No specific requirements exists as to the precise use of the “®” symbol as to placement, whether used in a subscript or superscript manner.

Contact United States Patent and Trademark Office for more information.


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