Now, before you conclude that I’m insulting your intelligence (I’m informed that all of our followers are brilliant), I’ll just say that I know many CEOs that don’t know the difference between a trademark and a service mark. They also don’t have a clue about which symbol to use, and when. So here it is in a nutshell. A trademark is a mark used on a physical product or its packaging. COCA COLA is an obvious example. A service mark is used in advertising or a promotional piece (like a web page) to identify a service that is rendered; for example, AMERICAN EXPRESS for financial services. Once you begin to using a mark, use a small TM next to a trademark, and a SM next to a service mark. Once a trademark is federally registered, both symbols change to a ®.
Sometimes the trademark/service mark distinction can get a bit tricky. Take software for example. A mark used on software embodied on a disc is a trademark (that’s easy enough.) But suppose you allow users to make use of your software on a website? This is considered a service, except when the software is downloadable, in which case it is classified as a product.
You might ask why these distinctions have any importance, and decide to use a TM on everything. If you look around the Internet, you will see plenty of big players, who ought to know better, using the wrong symbol. What’s the big deal? Only a handful of nit-picking trademark attorneys would notice, you say. You may have a point there. However, one symbol error is serious: using the ® symbol before the Patent and Trademark Office has issued a registration number. This is clearly illegal, so please don’t do it.
Janice Bader
Member, Symbus Law Group, LLC
Tel. 540-825-3500
jbader@symbus.com
www.symbus.com
