What is a Service Mark?

What is a Service Mark?

by Lisa C. Johnson, Esq., April 2015

When you think of Louis Vuitton, what do you think of? A Forbes article about the most powerful brands, says “Louis Vuitton is the world's most valuable luxury brand and is a division of LVMH. Its products include leather goods, handbags, trunks, shoes, watches, jewelry and accessories. Most of these are adorned with the LV monogram.”

Some people would do just about anything to have a bag with that LV monogram. They might buy a bag that is not leather and the LV on the product might look a little off in some way. The cost might have been an amazing bargain as well. That discounted price should set off alarms: that the bag is probably a counterfeit.

What is a Service Mark

The famous Louis Vuitton logo is some of the most valuable intellectual property in the world. The legal notice portion of the website gives us some insight into the ownership of these logos and symbols.

“Louis Vuitton ® is a registered trademark of Louis Vuitton Malletier S.A. (“LVM”), as well as all the other related trademarks and certain other LVM trademarks, service marks, graphics, and logos (collectively, the "LVM Trademarks") used in connection with the sale and distribution of Louis Vuitton products.”

The logo is part of the company’s trademarks. Trademark is a term that you may be familiar with. The U.S. Patent and Trademark Office (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.”

Sending goods bearing the trademark from one state to another would be using the trademark in interstate commerce.

The 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.”

For a service, interstate commerce is a bit different according to the USPTO. “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).”

Trademarks vs Service Marks

Trademarks and service marks are valuable to the owner for the sales of their products, but they are also valuable to the consumer. Consumers need to know who made the good or is conducting the service that they are using.

If someone buys a prescription drug and finds out that it was unsafe and has a bad reaction, they need to know the company that made it. Was their particular pill made by the company authorized to do so or was it made by an unlicensed facility? It could become a public health issue.
Taking a hot air balloon ride might be great fun for a group adventure. But if something goes wrong, it’s important to know what company is providing that service, so the public can be made aware. Is the public actually doing business with the company that they think they are doing business with?

Service Mark Registration

Like a trademark, a service mark does not need to be registered. Using the mark establishes common law rights. However, a federal registration may provide more benefits to the owner if litigation arises and damages are sought in court.

Most states have rules for state registration of service marks too. The rules vary between states and usually are found with the Secretary of State’s office. North Dakota gives a good example.

“While trademark or service mark registration is not required in North Dakota, a mark may be registered with the Secretary of State to establish exclusive right to the trademark in North Dakota. Any owner of a trademark or service mark registered with the Secretary of State may proceed by suit to enjoin the manufacture, use, display or sale of any counterfeits or imitation thereof. Any court of competent jurisdiction may grant injunctions to restrain such manufacture, use, display or sale as deemed just and reasonable, and may require the defendants to pay to the trademark or service mark owner all profits derived or all damages suffered by reason of the wrongful manufacture, use, display or sale.”

Before choosing a service mark, a service mark search should be conducted to make sure that the mark is not already in use by another entity. The raised SM service mark ℠ is the service mark symbol that can be used if the mark is not registered.

If the service mark is registered with the USPTO, then like a trademark, the R inside a circle symbol ® can be used after the mark. The USPTO Publication, Protecting Your Trademark [PDF] has plenty of useful information for trademarks and service marks as well.

The process for getting a trademark or a service mark is basically the same, and both marks offer the same sort of protection in most cases. The only difference is what the marks protect—not how. It is important that your service mark protects services, and not products.

If you're considering applying for trademark registration, LegalZoom can help. To get started, complete our trademark questionnaire. We'll perform a trademark search, create your application, and file it with the USPTO.