A company build its brand name generally on the basis of identifiable items such as, logos, sounds, words, colour schemes, and/or devices; therefore, companies are very meticulous when it comes to protecting their intellectual property (IP) because it holds a high value in today’s economy. In this blog we will discuss the difference between service mark and Trademark.
What is IP?
Before we discuss the difference between service mark and Trademark, lets discuss more about IP. IP or also called as Intellectual property is referred to all the creations by a human mind. There are total seven types of intellectual property rights, they are:
- Copyright for the protection of artistic and literary work under the Copyrights Act of 1957.
- Trademarks for the protection of words or symbols under the Trade Marks Act of 1999.
- Patents for the protection of inventions under the Patent Act of 1970.
- Designs of for the protection of a shape, any configuration, patterns, ornament or composition of lines or colours which is applied to two dimensional or three dimensional under the Design Act of 2000.
- Geographical Indications for the protection of reputed natural under the Geographical Indications of Goods (Registration and Protection) Act of 1999.
- Semiconductor integrated circuit layouts.
- Plant varieties under the Protection of Plant Varieties and Farmer’s Right Act of 2001
It is very important to provide legal protection to intellectual property for the progression of any society in this world. A registered service mark is used to designate the source of services. It helps to distinguish the services of one company from another one. While a trademark can be a phrase, symbol, design, name or the combination of these things that a company puts on its products so that it can be easily differentiated from the product of the different company.
This might seem very straightforward, but a few complexities must be ironed out. Understanding the various forms of brand protection is quite essential for a business. In this article, we have discussed the key differences between a service mark and a trademark and explained why you might want to use them.
How to Recognise a Service Marks?
A service mark is a sub-class of a trademark. The company uses service marks as a brand identifier. All the companies that provide different types of services rather than products refer to their trademark as the service mark.
In India, a service mark is not as such defined anywhere. It is rather included in the definition of trademark under Section 2(ZB) of the Trade Marks Act of 1999[1]. The term service mark is not defined independently under the Trade Marks Act 1999 of India, rather is included in the definition of a trademark which “includes a mark that is capable of being represented graphically so that it can distinguish between the services of one person from those of other. A service mark can only be associated with the services provided by the company, for example, services like cleaning services, legal services, Training services, consulting services, etc. Some well-known examples of service marks are: American Express, United Airlines, Facebook, etc.
Prior to the Trade Marks Act of 1999, trademarks were only given to the goods and not services under the Trade and Merchandise Marks Act of 1958. But the Act of 1999 changed all the scenarios because, for the first time, trademark registration was given to services in India. The Act follows the Nice Classification of Goods and Services and provides 11 classes for services from Class 35 to Class 45 under the Trade Marks Rules of 2002.
What is a Trademark?
A trademark works as a visual representation that is attached to goods to indicate their origin. A trade mark is a precious asset for a trader or a businessman because it is directly associated with the goodwill of trade or the business; therefore, the protection of a trademark is directly linked to the protection of the reputation or goodwill of the company.
The term trademark has been defined under Section 2(1)(zb) of the Trademark Act of 1999.
According to the act, the term trademark is defined as, “Mark which is capable of being represented graphically and also capable of distinguishing the goods or services of one business from those of others business and may include shape of goods, their packaging and combination of colours.”
Difference between Service Mark and Trademark
A trademark or a service mark is a symbol or a logo or a phrase or the combination of these things, which helps in differentiating one product or service with that of other. The difference between Service Mark and Trademark lies in what they represent. One represents the product of a company, whereas the other one represents the service provided by the company.
The key differences between service mark and Trademark are mentioned below:
| S. No. | Trademark | Service Mark |
| 1 | A trademark can be used for any good that is produced by the company. | A service mark can only be used for the services provided by the company |
| 2 | When the applicant submits the application for trademark registration, they can use the symbol TM with the product. | When the applicant submits the application for service mark registration, they can use the symbol SM with the service they are providing. |
| 3 | Information regarding the categorisation is provided under Section 7 of the act. For the definition and classification of goods, they categorized from 1 to 34 under the Trademark Act of 1999. | Information regarding the categorisation is provided under Section 7 of the act. For the definition and classification of services, they categorized from 35 to 42 under the Trademark Act of 1999 |
| 4 | Trademark is associated with the product of the company such as chocolate, shoes, cell phone, notebooks, packing material, etc. | Service mark is associated with the service provided by the company, such as cleaning services, legal services, Training services, consulting services, etc. |
Registration of Service Marks in India – Service Mark and Trademark
The process for registering a service mark in India, includes the following steps:
- Firstly the interested applicant needs to identify the location of their service –providing company.
- By filling out form TM-1 with all the required documents, the applicant can proceed with the procedure (with this applicant has to provide the details regarding the class and subclasses in which the company aims to provide services.).
Document required for registering a service mark
- A copy of the service mark.
- Details regaling the service-providing company.
- Details regarding the trademark agent or the lawyer with a copy of the power of attorney.
- A copy of government authorised ID proofs.
- The Trademark Register will start examining the application along with the documents filled with application.
- After the verification is complete and the registry is satisfied, it will publish service mark in the Indian Trade Marks Journal for a period of three months.
- Now if any third party has any objection can bring it to the registry within a period of four months from such publication. The Registrar will send a copy of the objection to the applicant. Evidences have to be filled in by both the parties.
- Upon the satisfaction, the Registry will approve the registration
- A registered service mark is protected for a period of ten years.
- A Company can renew the service mark by filling out form TM-12 along with the renewal fee.
Registration of Trademark in India – Service Mark and Trademark
The process for registering a trademark in India, includes the following steps:
- Firstly the interested applicant needs to conduct a trademark search, to check is there is any similar mark already existing or not.
- By filling out form TM-A with all the required documents, the applicant can proceed with the procedure. One can file the application through e-portal or in physical form in the office.
Document required for registering a Trademark
- A copy of the trademark.
- Details regaling the service-providing company.
- Details regarding the trademark agent or the lawyer with a copy of the power of attorney.
- A copy of government authorised ID proofs.
- The Trademark Register will start examining the application along with the documents filled with application.
- After the verification is complete and the registry is satisfied, it will publish the trademark in the Indian Trade Marks Journal for a period of three months.
- Now if any third party has any objection can bring it to the registry within a period of four months from such publication. The Registrar will send a copy of the objection to the applicant. Evidences have to be filled in by both the parties.
- Upon the satisfaction, the Registry will approve the registration.
- A registered trademark is protected for a period of ten years.
- A Company can renew the trademark by filling out form TM-12 along with the renewal fee.
Conclusion
In India, service marks were not recognised by the Trade Marks and Merchandise Act of 1958. It was the Trade Marks Act of 1999 that recognised the marks and provided them legal protection. The service marks are registered under the Nice Classification of Goods and Services, for classes 35 to 45. A company can have both the marks for their business. As discussed above, the registration process for both service mark and trademark is the same and requires similar documents during the process of registration. When the applicant submits the application for trademark registration, they can use the symbol TM with the product and when the applicant submits the application for service mark registration, they can use the symbol SM with the service they are providing.
Read Our Article: Online Trademark Registration: A Detailed Guide
