In general, a trademark is a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods that are used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another. In essence it provides the public with information regarding the source of the product and distinguishes it from others. Strong trademarks immediately trigger a recollection of a product when the name is mentioned or logo is seen. Examples of strong trademarks are Louis Vuitton, Hermes, BMW, Gucci, Bounty, Tide and Nike. As you read these words representing the different trademarks you most likely immediately (i) know the brands that the products represent and (ii) recall the accompanying logos related to the trademark. If the word, phrase or logo doesn’t differentiate your product from others then it is not a trademark. A trademark in essence is really granted by the public, the consumer’s recognition of the product or service based on the phrase, symbol, design or combination is what determines whether the phrase symbol, design or logo has achieved the status of a trademark. Thus, a trademark does not need to be filed with the state or federal government but doing so will allow the owner of the registered trademark to exclude anyone else from using the mark. In having this right of exclusivity the trademark owner can stop anyone from using a mark that would be confusing to its trademark which has gained amongst its consumers.
A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than goods. Burger King, Dry bar, Jiffy Lube and Turbotax are examples of service marks which identify the service that the companies provide. Thus, many people use the word trademark and service mark interchangeably.
Can a mark be both a trademark and a service mark?
It is possible for a word, phrase, symbol, or design, or a combination thereof to identify goods and services simultaneously. One example is Sephora which has a service mark which represents its business of providing retail service and Sephora also sells products under its own trademarked brand name. Many restaurants with famous service marks such as California Pizza Kitchen, Olive Garden and TGI Friday’s also started out as service providers that now sell food products in grocery stores under their trademark. In general a trademark or service mark often gains recognition as one or the other prior to “crossing over.”
Is a Trademark the same as a business name?
A trademark is not necessarily your business name. Many clients say “I’d like to trademark my LLC” or “I’d like to trademark my business.” which may not be the way that their product or service is identified by the public. Additionally, just because a business name is available on the department of state’s website does’t mean that the trademark is available to represent a business’ goods or services. It is very important to determine whether your trademark is available for registration or if it is already being used by someone else early on in the establishment of a new business. Putting in the money and effort to build a business just to find out that it is infringing on an already registered or established trademark is counterproductive and expensive. Bales & Bales, P.A. can conduct a comprehensive trademark search and help you determine whether a trademark is available for use. If you have a trademark that you would like to register we provide flat fee trademark service that you can order online, or you can contact us for a consultation.
Wondering how long it will take to register your trademark? Check out our post on “How long will it take to get my trademark?”