Creating a strong brand is one of the most critical things you can do for your small business. Building a brand is about differentiating yourself from your competition, which includes protecting your company name and logo from being used by other businesses. Registering for a trademark or service mark can help prevent this from happening.
Trademark vs Service Mark: What’s the Difference?
Both trademarks and service marks are issued by the United States Patent and Trademark Office (USPTO) to distinguish a brand’s products and services from those of other businesses. A trademark is a word, phrase, symbol, and/or design that identifies the source of goods or products. A service mark is a word, phrase, symbol, and/or design that distinguishes the source of a service rather than goods. The term “trademark” is often used in a general way to refer to both trademarks and service marks.
Consumers often associate trademarks with recognized brand names like Nike and Coca-Cola. Common service marks include McDonald’s, which holds a registered mark for its restaurant services, and Walmart, which has a registered mark for its retail services.
Some companies trademark multiple elements of their brand, such as their business names, logos, and slogans. For example, Nike has trademarks on its brand name, its swoosh logo, and its tagline, “Just Do It”.
Whether a business needs a trademark or a service mark can be confusing, and companies that offer both goods and services often fall into both categories. For instance, shipping giant UPS sells products like boxes and packing materials in its stores and Burger King sells items like the Whopper in its fast food restaurants. These companies might register for both trademarks and service marks to protect their brand assets.
Why Register for a Trademark or Service Mark?
Trademarks and service marks prevent others from using your small business’s company, product, and service names, as well as slogans, logos, and other branding elements. Not only does this protect your business, but it helps prevent confusion among consumers about what you offer or sell.
Trademark registration is not mandatory. You can establish common law rights based on use of the mark in commerce. However, federal registration of a trademark has several advantages, including public notice of your claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the registered goods or services. A trademark or service mark offers more extensive protection of a company’s name than simply registering the name with the state. While an LLC or corporation receives some protection of its brand name in the state in which it is registered, a trademark or service mark offers protection in all 50 states.
If you have not yet registered a trademark or service mark, you may use TM for goods or SM for services to indicate that you have adopted this as a common law mark. Including these designations each time you use your trademark or service mark informs competitors that you are claiming the wording or mark for your business. While this can help deter other businesses from using your intellectual property as their own, full legal protection only comes with federal trademark registration through the USPTO.
How to Apply for a Trademark or Service Mark
Registering for a trademark or service mark is not a complicated process, but it’s important to complete the application accurately in order to avoid the risk that it will be rejected. Before applying for a trademark or service mark, it’s a good idea to invest some time in doing research to make sure another business has not filed for, or is already under trademark or service mark protection using, the same or a similar mark. You may want to consider working with an experienced intellectual property attorney who can provide advice as you move through the process.
A company can take action to help protect its business name, even if it hasn’t yet started selling its products or services, by filing an intent to use application. One key advantage of filing the intent to use application is that the USPTO regards the filing date as the “constructive use” date for establishing the business’s rights to the mark. So, if a company files an intent to use application on May 1 and another company files an actual use application on May 4, the first company would be granted the trademark or service mark protection. The USPTO gives businesses six months to file an actual use application after they submit an intent to use application.
After receiving an application, the USPTO can take up to 12 months to process a trademark or service mark request. Once approved, a company can begin using the ® symbol to signify that it has legal protection of its mark.
Unlike patents and copyrights, trademarks do not expire after a set number of years. Trademark rights come from actual use, so as long as you continue to use the mark in commerce to indicate the source of goods and services, a trademark can last forever. Similarly, a trademark registration will have an unlimited lifespan as long as you file the required renewal documents and regularly pay all fees.
In a marketplace that offers consumers infinite choices, often right at their fingertips, it’s more important than ever that people remember your company and the products you sell or the services you provide. Protecting your business identity with a trademark or service mark is a crucial step in establishing a well-defined brand and helping your small business maintain a competitive edge.
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