Many companies have a distinctive brand, logo, or identity symbol that helps them stand out in advertising and other business-related contexts. A trademark or service mark is the term used to describe this identification mark.
Intellectual property includes things like a trademark and service mark. They state that the logos, marks, or slogans belong to the owner and identify the place of origin of the object they are used to identify. They also safeguard the owners by forbidding unauthorized usage by third parties.
What is a Service Mark?
Similar to a trademark, a service mark is used to identify one company’s services from those of other service providers. It can only be connected to services, not to products or to items. Slogans for a service that a business offers are frequently used.
For instance, a plumber can register the service mark “Leak Fixers” with or without a distinguishing logo for the plumbing service he offers. Once a service mark is registered, no one else is permitted to use it in connection with their products or services. American Express, United Airlines, Facebook, and others are examples of well-known service marks.
What is a Trademark
A brand or logo that includes words, numbers, devices, symbols, or a mix of words, numbers, devices, and symbols is known as a trademark. They support a commercial product’s identification and set it apart from competing items or products on the market.
A trademark enhances a company’s reputation and guards against unauthorised usage by other parties. As a result, third parties are prohibited from copying a registered brand that is in demand for the market’s own goods or products. Nike, Bata, Pepsi, and other brands are a few instances of trademarks.
Similarities Between Service Mark and TradeMark?
For both trademark and service mark share the same primary purpose. Both of them strive to distinguish and safeguard a person or company’s good or service in the marketplace. They contribute to distinguishing the item or service they are connected with from similar goods or services provided by rivals in the market.
The use of a registered trademark or service mark is protected as intellectual property, and third parties are prohibited from doing so without the owners’ consent. To be registered, a trademark or service mark connected to a good or service must be distinctive.
Trademark India Act- The process for registering a trademark or service mark is the same. The Trademark Act of 1999 (the “Act”) does not define a service mark separately. As a result, the Act in India grants a trademark to both products and services. A service mark used by a service provider is registered as a trademark and is protected by the trademark classes for services offered under the Trademark Act.
Difference Between Service Mark and Trade Mark?
| Trademark | Service Mark |
| Anything distinctive in the market is eligible for trademark protection. | Only the services offered are permitted to use a service mark. |
| A trademark identifies the maker of an item that a business produces or sells. | A service mark identifies the source of origin of a particular service provided by a business or institution that offers services. |
| When submitting a trademark registration application for a product, the sign “TM” is used with the trademark. | When submitting a trademark application for a service, the abbreviation “SM” is used with the service mark. |
| A product is submitted for trademark registration under one of the Act’s trademark classes, ranging from 1 to 34. | A trademark registration request has been made for a service that falls under Act trademark classes 35 to 42. |
| A trademark is connected to products or commodities like bread, smartphones, hammers, etc. | A service mark is connected to products and services like coaching, landscaping, legal services, etc.
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Factors to Compare Using a Service Mark vs. a Trademark
Utilizing the symbols connected to trademarks and service marks has the advantage of alerting rival businesses to your intent to utilise the mark for commercial purposes. Seeing one of these symbols on your mark may lessen the likelihood of duplication if a comparable firm is considering changing its logo, slogan, symbol, design, or term linked with the products or services.
However, when you submit an application for a trademark or service mark, you have true legal protection. You won’t have any protection against trademark infringement up until you accomplish this.
When you do apply for a trademark or service mark, keep the following things in mind:
- All capital letters should be used when submitting a trademark or service mark that solely comprises characters. Both capital and lowercase letters are covered by the legal protection.
- If your trademark or service mark includes a design, logo, or symbol, you must submit it exactly as you intend to use it. You must reapply for a new trademark or service mark if you update the mark.
- You might wish to think about submitting many applications simultaneously. When you submit a colour design, just that specific layout is legally protected. So be sure to submit new applications for each choice if you ever want to utilise the design in a different colour or in black and white.
Arguments against Using a Trademark vs. a Service Mark
Because they dislike how the TM or SM insignia appear on the mark, some firms choose not to use them. These superscript letters might clog up your design’s text or layout. However, while writing, you can just use one of the symbols at the mark’s initial occurrence. By doing this, the text will be easier to read and the clutter will be lessened.
The expense of submitting an application for your trademark or service mark may also be a deterrent. The filing costs vary from $225 to $600. You can utilise the TM or SM as a stand-in for your mark if your business lacks the cash to pay the price. However, pursuing a legal registration of the mark as soon as feasible is obviously worthwhile. Only by completing the trademark or service mark registration process can your brand be completely protected.
What Might Take Place If You Don’t Use a Trademark or Service Mark?
There are no legal ramifications if you choose not to use the TM or SM insignia on your mark. Aside from providing fundamental common law trademark rights, these symbols cannot defend your mark in court or in any other way protect it. Companies that utilise the mark in ordinary commercial operations are protected by common law rights.
However, the common law trademark rights are no longer valid if another party has registered a mark that is identical or confusingly similar. Before utilising any service mark or trademark in any format, you must do a complete search in the TESS.
You run the risk of violating someone else’s trademark if you don’t register your trademark or service mark. You have no legal rights to your mark if it is not registered. Additionally, it becomes almost hard for someone else to discover that you have been using the mark in accordance with your common law trademark rights.
You forfeit your right to do so if the other party decides to apply for a service mark or trademark with a similar or identical mark. It might be quite challenging to demonstrate that you have been using a mark longer than the other party. When the USPTO examines the application’s filing date, which serves as the foundation for all legal rights to the mark, things get even more complicated.
Additionally, knowing the distinctions between service marks and trademarks can help you submit the proper application. Nike, a business that offers garments and footwear, is one example of a trademark. McDonald’s is an illustration of a service mark because this business provides restaurant and food services.
Some businesses fit both the service mark and trademark definitions. A transportation firm like UPS serves as an illustration of this because it provides both products and services. In their stores, you may buy things like boxes and packaging supplies. TM and SM symbols may be added by the corporation to trademarks for products and services, respectively.
Common Mistakes
One error is failing to recognise which trademark best safeguards your business and its products or services. It is preferable to file for a service mark for services and a trademark for goods and products, even though doing so could not significantly influence the legal protection.
Trademark check- Delaying the registration of a trademark or service mark is also dangerous, especially if you already use the mark for commercial purposes. You are entitled to common law trademark rights, but you will lose such rights if someone else registers a trademark for a comparable phrase or product before you do. The likelihood of losing the possibility to submit for a trademark in the future is decreased by filing as soon as possible to start the approval process.
Conclusion
For a symbol, logo, phrase, word, design, or name that symbolizes goods or products, a trademark grants legal protection. Similar protection is provided for services by a service mark, or servicemark. You would need to trademark the mark that is used to represent the business if your firm offers a single item or a number of goods. Focus on the service mark if your business offers a service.
Using TM and SM in your mark stands for trademark and service mark, respectively. Neither has any implication in terms of law. The only sign that is recognised by law is the registered symbol, which is denoted by a R surrounded by a circle.