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.
In a prior blog post, I explained that the United States Patent and Trademark Office (USPTO) registers proper trademarks and service marks, but it does not issue them as it issues patents. However, even if a company does not apply to register a mark, it will generally have common law rights in a proper mark used in commerce. The common law rights are less extensive and less clearly articulated in case law than those for registered 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).