1. What Is a Service Mark?
2. What Is the Function of a Service Mark?
3. Who Enforces Service Marks?
4. Service Marks Compared to Trademarks

What Is a Service Mark?

A service mark is a brand name or logo that indicates to consumers who is the provider of a particular service. For these purposes, a service is defined as something intangible that a business does for another business or individual in a transaction. Some examples might be floor cleaning or house painting where no actual physical product changes hands.

What Is the Function of a Service Mark?

Service marks perform several important functions in the marketplace. They help protect businesses and consumers alike while they encourage fair and healthy competition.

  • A service mark helps protect intellectual property by keeping anyone else from using that name or symbol to mislead consumers. Companies spend significant financial and other resources to get consumers to try their goods and services. Once a customer develops a positive relationship with a company, it's important to prevent brand confusion. The consumer needs to know that when he shops with a company under a particular mark, he'll get the same level of service every time. If a company is free to use the mark of another company, then consumer confidence is impossible. 
  • Service marks help businesses make their services stand out from other companies that offer something similar. For example, if you order a Big Mac at a restaurant with the McDonald's logo out front, you know you will be served a sandwich with two all-beef patties, special sauce, lettuce, cheese, pickles, and onions on a sesame-seed bun. You would not expect to get a flame-broiled Whopper at McDonald's.
  • Service marks encourage competition because it's critical for businesses to cultivate a positive image consumers associate with their mark. This creates confidence in the consumer that they'll get what they expect when they buy from a company under that mark. If a business's service mark becomes associated with a negative experience, that can be disastrous for the company's bottom line.
  • A business can use the same mark as both a trademark and a service mark as long as the services and goods aren't too intertwined or too closely related.

Who Enforces Service Marks?

The law of Unfair Competition governs service marks. This is a body of laws related to economic injuries in business caused by deceptive business practices. Such cases can involve one of two categories, either unfair competition or unfair trade practices.

  • Acts of unfair competition are intended to confuse consumers as to the provider of a given product or service.
  • Unfair trade practices encompass all other kinds of unfair competition, excluding monopolies and antitrust laws.

In specific industries, additional regulations apply. The Lanham Act is a good example of such a piece of legislation. It relates to media productions like radio and television programs. The Lanham Act states that “titles, character names, and other distinctive features of radio and television programs may be registered as service marks notwithstanding that they, or the programs, may advertise the goods of the sponsor.”

Service Marks Compared to Trademarks

Service marks and trademarks are both made up of text, phrases, pictures, and other design elements, alone or in combination. Service marks are similar to trademarks. In fact, service marks are actually a type of trademark. The substantive and procedures rules governing the two are fundamentally the same. The two forms of protection are equally protected under the law. Sometimes they are even used interchangeably in conversation. However, there are some important differences to note.

  • While service marks are associated with services, trademarks apply to products. However, there are situations — such as restaurants like McDonald's and retail stores like Walmart — that use a service mark to indicate their services. These establishments provide a service but they may also sell physical items.
  • Since trademarks apply to a concrete object, they're often affixed to that product with a tag or a label. Service marks are usually shared only through advertising or other types of promotion since there's no concrete object involved.

Applying for a service mark can be a complicated and detailed process. Errors are easy to make and can be very costly. If you need help with developing a service mark or enforcing your protections under the law, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.