Service Mark

Author:Jeffrey Lehman, Shirelle Phelps
 
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A TRADEMARK that is used in connection with services.

Businesses use service marks to identify their services and distinguish them from other services provided in the same field. Service marks consist of letters, words, symbols, and other devices that help inform consumers about the origin or source of a particular service. Roto-Rooter is an example of a service mark used by a familiar plumbing company. Trademarks, by contrast, are used to distinguish competing products, not services. Whereas trademarks are normally affixed to goods by means of a tag or label, service marks are generally displayed through advertising and promotion.

Service marks are regulated by the law of UNFAIR COMPETITION. At the federal level, service mark infringement is governed by the LANHAM TRADEMARK ACT of 1946 (15 U.S.C.A. § 1051 et. seq.). At the state level, service mark infringement is governed by analogous INTELLECTUAL PROPERTY statutes that have been enacted in many jurisdictions. In some states service mark infringement may give rise to a CAUSE OF ACTION under the COMMON LAW. Because service marks are a particular type of trademark, the substantive and procedural rules governing both types of marks are fundamentally the same.

The rights to a service mark may be acquired in two ways. First, a business can register the mark with the government. Most service marks are eligible for registration with the U.S. PATENT AND TRADEMARK OFFICE. Several state governments have separate registration requirements. Once a service mark has been registered, the law typically affords protection to the first mark filed with the government. Second, a business may acquire rights to a service mark through public use. However, a mark must be held out to the public regularly and continuously before it will receive legal protection. Sporadic or irregular use of a service mark will not insulate it from infringement.

To receive protection, a service mark must also be unique, unusual, or distinctive. Common, ordinary, and generic marks rarely qualify for protection. For example, a professional association of physicians could never acquire exclusive rights to register a service mark under the name "Health Care Services." Such a mark does little to distinguish the services provided by the business and tells consumers nothing about the HEALTH

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A sample trademark/service mark application

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CARE practitioners involved. The law would...

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