Both trademarks and service marks are used in commerce. A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark (or servicemark) is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. The term "trademark" is often used generally to refer collectively to both trademarks and service marks.
A common misconception about trademarks and service marks (collectively, “marks”) is that a business applies for them much like an inventor applies for a patent on an invention. This is incorrect. The U.S. Patent and Trademark Office (“USPTO”) only registers marks that are already in use in commerce by the applicant for registration. Although registration creates certain additional rights primarily related to enforcement, the applicant’s rights derive from its own use of the mark (or in some instances, the use by a related entity).