A service mark in practice is very similar to a trademark, with the only difference being that a trademark is used in reference to a mark that represents goods, while a service mark is used in reference to a mark which represents services. A trademark can be used for both goods and services, however some countries use the term service mark to further clarify the matter. When seeking trademark or service mark registration, is it vital that you are aware of the terminology used by your country’s intellectual property office as this will affect the registration process.
Service mark explained
The use of the word ‘service mark’ is most commonly found in the USA, however there may be a number of other intellectual property offices in countries across the globe which also adopt a registration process for service marks and trademarks alike.
A service mark which is registered with the appropriate intellectual property office, will adopt the official symbol which is a ‘R’ inside a circle. However prior to obtaining official registration, the mark will adopt the symbol SM. In a similar way, a trademark that is not registered will adopt a TM symbol, and the ‘R’ inside a circle symbol once the trademark is registered.
Service marks in the USA are regulated by the Unfair Competition Act, although where infringement occurs, the Lanham Trademark Act 1946 applies. At state level, all marks issued are dealt with by the relevant intellectual property office of that state.
The purpose of a registered service mark is to assist the government authorities, competitors and the general public to distinguish the service from others. Once registered it is awarded the same level of protection as a registered trademark and is offered legal protection against all cases of infringement against the registered mark. The onus will be on the infringing party to prove they acted in good faith in case of passing off or other infringement issues.
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