Service Mark
A word, name, symbol, or device used to identify and distinguish the services of one person from those of others. The services-equivalent of a trademark, governed by the same Lanham Act provisions and Texas trademark statute. Most "trademark" rights protecting brand names for services are technically service marks.
A service mark is a word, name, symbol, or device used by a person to identify and distinguish the services of one person from the services of others. A service mark is the services-equivalent of a trademark, the same legal framework applies to both, with "trademark" used for goods and "service mark" used for services. Most consumer-facing brand protection in service-economy industries (consulting, hospitality, software-as-a-service, financial services, professional services) operates through service-mark rights.
Distinguishing trademark from service mark
Trademarks identify and distinguish goods; service marks identify and distinguish services. The legal protections, registrability standards, and infringement standards are identical, but the use specimens required for federal registration differ, trademark specimens show the mark on the goods or packaging, while service-mark specimens show the mark in advertising or rendering of the services. Many marks are both: a software company's name may serve as a service mark for its SaaS service and as a trademark for boxed software.
Registration
Service-mark registration follows the same path as trademark registration: federal application to the USPTO; state-level application to the Texas Secretary of State; or unregistered use creating common-law rights. Service-mark applications must specify the services covered with reasonable specificity in International Class 35 through 45 (the services classes). A use-based application under § 1051(a) requires that the services already be rendered in commerce under the mark. An applicant with a bona fide intention to use the mark may instead file under § 1051(b), but registration issues only after a verified statement of use is filed under § 1051(d).
Use in commerce
For service marks, "use in commerce" means the mark is used or displayed in the sale or advertising of services rendered, with the services rendered in commerce that Congress may lawfully regulate. For goods, the mark generally must be placed on the goods, their containers or labels, or associated displays. Display in advertising, on websites or signage, or in other materials used in selling or rendering the services can qualify, provided the services are being rendered and the mark is shown in connection with them.
For Texas service-economy businesses, law firms, consultancies, software companies, agencies, restaurants, healthcare practices, most outward-facing brand protection is service-mark protection. Federal registration (≈$350-$750 per class) provides nationwide constructive notice of ownership, presumptive validity, and the possibility of incontestable status after five consecutive years of continuous use following registration, once a § 1065 affidavit is filed. State registration is supplementary and inexpensive; common-law rights protect within the geographic area of actual use.
Practice guide: How to Trademark a Business Name