Businesses create trademarks and service marks to symbolize their business through designs, words (phrases), pictures or logos which distinctly identify the goods or services of a company. Trade and service marks are a form of intellectual property which, if located in the U.S., is protected under federal law. The biggest difference between the two terms is a trademark is a mark which promotes a product and a service mark is applied to label a service for recognition; other than that, there isn’t much of a difference.
Once a company starts using a trademark or service mark, consumers typically associated it with that business. The most popular companies across the globe have a specific trademarks or service marks they attribute to their products and services. For instance, Apple uses an illustration of an apple with a bite taken out of it, McDonalds’ possesses the famous golden arches and the colorful Google name is one of the most well-known distinguished trademarks today.
In most of Europe and in the U.S., marks are granted in accordance with use under common laws, but it’s a good idea to register your mark as well. In 1946, the Lanham Act was passed in the U.S. to ensure businesses could protect their trademarks and retain them as a unique way to identify themselves. Today, in the U.S., in order to acquire protection, the goods must be moved through interstate commerce to be eligible. After this requirement is met, a business may register their mark on the “Principal Register”, being unique and it may not be a generic word. To qualify for protection, in Europe businesses can be pre-register their trademark before using it, and the U.S. has recently amended the Latham Act to follow this custom. It also stipulates that a trademark may be challenged up to 5 years and if no one challenges it, it becomes the sole property of the registrant and cannot be contested as long as the owner keeps it into effect (Jennings, Marianne, 2006).
While words can be associated with a product, it’s important to understand why a business cannot trademark a generic term and deny other businesses the right to use it. For instance, Harley-Davison in 1999 initiated a lawsuit against a company called “The Hog Farm” for using the term “hog”. The U.S. Courts ultimately decided that the word “hog” was too generic and Harley could not claim it as their own. They indicated it was fine to use “Harley Hogs”, but not simply “hog” (Harley-Davison v. Grottanelli). There are some generic words which are the exception because they are considered to be trade names; “Olympic” is one such case. In the U.S., a business cannot promote a contest using the word “Olympic” because it belongs to the U.S. Olympic Committee (San Francisco Arts & Athletics v. U.S. Olympic Committee). A company which tries to capitalize on a distinguished trade name without the registered owner’s consent is committing infringement.
Trade and service marks are a form of intellectual property and are protected by law. They are useful to businesses because they give a product or service a unique identity where consumers immediately recognize them and this fosters brand recognition, but it does pose some challenges for businesses. What’s important when developing a trade or service mark is to find something really unique to represent your good or service; the likelihood of it being approved for registration is higher and it benefits your company because it’ll be one-of-a-kind.