What Is a Service Mark and How Do You Register for One?

What is a service mark?

While the term “trademark” is often used colloquially to refer to any sort of brand markings, it’s important to note the distinctions between a trademark and a service mark. While trademarks protect tangible goods and products offered by a company, service marks are used to protect the intangible services a business offers.

The United States Patent and Trademark Office (USPTO) defines service marks as a particular type of trademark that, instead of identifying a tangible good, is used to “identify services, that is, intangible activities, which are performed by one person for the benefit of a person or persons other than himself, either for pay or otherwise.”

Service mark examples

Companies will often register both a trademark and service mark or marks, as many business entities offer both tangible goods and services to their customers. In either instance, the marks include logos, names, and other distinctive features of the brand and its goods and services. 

A classic example of a service mark is the golden arches used by McDonald’s. While the arches themselves do not represent any particular product the restaurant chain sells, they represent the services offered by the business and thus are protected under a registered service mark. McDonald’s also sells trademarked goods, such as a Big Mac, Happy Meal, or McFlurry.

Other service mark examples include names and logos for companies such as Visa, American Express, or Discover, which offer credit card services; Delta, American Airlines, Uber, or Greyhound, which provide transportation services; and social media platforms such as Facebook.

Service marks do not have to be visual, either. Audio service marks exist to protect the rights of radio or television programs, for example. In 1950, NBC registered its signature three-note chime sound introduction as the first ever audio service mark, representing the news broadcasting services offered by the company. Many other such sound bites have since been registered as service marks for other media companies and businesses with distinguishing audio brand elements.

Service mark vs. trademark

The USPTO defines trademarks as marks “used by their owners to identify goods, that is, physical commodities, which may be natural, manufactured, or produced, and which are sold or otherwise transported or distributed via interstate commerce”—that is, sending goods bearing the trademark from one state to another.

Service marks, on the other hand, protect services or intangible activities. In the context of interstate commerce is defined a bit differently for services. “With services, ‘interstate commerce’ generally involves rendering a service to customers in another state or rendering a service that affects interstate commerce (e.g., restaurants, gas stations, hotels).”

These two types of protections have their own visual indicators to distinguish them from each other. Unregistered trademarks are denoted with the trademark symbol ™ or just the letters “TM," while unregistered service marks are denoted with the service mark symbol ℠ or the letters “SM.” Once these marks have been registered with the USPTO, either type of symbol can be replaced with ®, the registered trademark symbol. 

Why register a service mark?

Service marks receive common law trademark protection if you use them in your business. This protection is weak, though, and doesn't usually extend beyond your immediate geographic area. If another business then uses your mark, it can be hard to prove that you have a superior right to use it.

Many states offer service mark registration, but state registration will not protect you under intellectual property laws if an out-of-state business begins using your mark.

Federal trademark registration with the USPTO gives you nationwide protection, creates a public record of your mark, allows you to sue in federal court for trademark infringement, and can make it easier to obtain trademark protection in another country.

Service mark registration step by step

Similar to the process for registering a trademark, a service mark can be registered in only four simple steps.

Step 1: Conduct a service mark search

You can't register a service mark if someone else is already using a deceptively similar mark for the same type of services. A mark is deceptively similar if it looks or sounds like an existing mark, so that a consumer might be confused about the source of the services.

The USPTO offers an online search system through the Trademark Center that can be used to search for similar service marks at the federal level, but does not cover state, common law, or international trademarks. LegalZoom's comprehensive trademark search service will examine all of these databases to identify potential conflicts.

Step 2: File an application

To fill out the service mark application, you'll need this information:

• The name of the service mark's owner and an address for correspondence.
• The type of mark you are registering: a standard character mark, a special character mark, or a sound mark. (A standard character mark protects a group of letters or words in any form you choose to display them, while a special character format protects your mark in the exact style and color you specify.)
• The type of services your mark is used for.
• A picture and specimen of your mark. A picture shows what your mark looks like by itself. You'll also need a specimen, such as a brochure or a sign, that shows how you are using your service mark.

Once your application is complete, you can apply online or—in rare circumstances—by mail. To apply online, you’ll need to create a USPTO online account and verify your identity through the office’s online portal. 

The application for a service mark carries a $350 base application fee, with additional fees for certain extenuating circumstances.

Step 3: Wait for approval

The average wait time for a review of a service mark application through the trademark office is around six months, depending on the current volume of submissions ahead of yours awaiting review. You can check on wait times for your application directly through the USPTO site.

Once the office reaches your spot in the queue, your application will be assigned to an examining attorney at the USPTO. If there are questions or problems, you may receive a letter known as an office action. It's important to respond to an office action within the deadline contained in the letter. If you don't, your application could be denied.

Step 4: Maintain your service mark

Once your service mark is approved, you must use it continuously in your business operations for it to remain valid. There are also several pieces of maintenance paperwork which must be filed at regular five-year intervals and fees which accompany the required forms. 

Failure to meet these maintenance requirements will result in the USPTO canceling your service mark. You will then need to re-apply for the mark from scratch if you wish to continue protecting it.

How much does it cost to get a service mark?

An application for a trademark or service mark costs $350 through the USPTO. There are additional fees for incomplete or poorly filled-out applications, with penalties ranging from $100–$200 depending on the errors. 

After five years, a renewal fee of $325 is required along with the required maintenance documents. If you wish to file a declaration of incontestability after five years, you may instead pay $575 for the declaration along with your five-year renewal.

Get your service mark with LegalZoom

Staying on top of your application as it makes its way through the service mark registration system can be tricky, and failing to respond to office actions in a timely fashion can cost you a great deal of time and money on top of your initial investment.

For added peace of mind, LegalZoom offers an online service mark registration service which takes care of all of the details for you while you focus on building your business. Just provide some basic information and examples of your service mark, and your trademark attorney will take care of the rest for you.

FAQs 

What is a 'specimen' in the service mark application?

A specimen is an example of your service mark being used in a commercial application. This could be marketing materials for your business, signage, or a physical product that shows the service mark in action.

How long do service marks last?

A service mark is good for five years before it’s due for renewal. This time period is based on the assumption that the mark is in continuous commercial use during that period, as is required for the mark to remain valid.

What happens if I don’t use my service mark?

Failure to use your service mark can lead to its cancellation by the USPTO. If your service mark is cancelled, you’ll need to re-apply for the mark and follow the process from the beginning, including paying all relevant fees.

Lisa C. Johnson, Esq. contributed to this article