Service Mark

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

A sample trademark/service mark application

CARE practitioners involved. The law would give full legal protection to these same doctors, however, if they applied for a mark under the name "Snap and Jerk Chiropractic Services."

Once a business has established a vested right in a service mark, the law forbids other businesses from advertising their services with deceptively similar marks. Service mark infringement occurs when a particular mark is easily confused with other marks already established in the same trade and geographic market. Greater latitude is given when businesses that share similar marks are in unrelated fields or offer services in different consumer markets. For example, a court would be more inclined to allow two businesses to share the same mark when one business provides pest control services in urban areas, while the other provides film developing services in rural areas.

Two remedies are available for service mark infringement: injunctive relief (court orders restraining defendants from infringing on a plaintiff's service mark), and money damages (compensation for any losses suffered by an injured business). Both remedies are normally available whether a claim for infringement is pursued under state or federal law. However, the Lanham Act allows an injured business to recover significantly greater damages for infringement of a federally registered mark than it could recover under comparable state legislation.

Service marks protect the good will and reputation earned by businesses that have invested time, energy, and money in bringing quality services to the public. Service marks also encourage competition by requiring businesses to associate their marks with the quality of services they offer. In this way service marks function as a barometer of quality upon which consumers may rely when making decisions to purchase. However, service marks are often infringed, and consumers grow leery when inferior services are passed off as a competitor's through use of a deceptively similar mark. Thus legal protection of service marks can save consumers from making improvident expenditures for services of dubious or unknown origin.