Top Marks For Serving Goods

Companies use words, designs, logos, colors, sounds and smells to help customers find and remember the company’s wares.  If you want to buy a cold, caffeinated, carbonated beverage, you may choose a distinctively shaped bottle with cursive writing.  If you are looking for tax preparation services that has its own online software, you may choose one with a big, green square.  In either case, you are looking to their marks to help know that you are buying what you want to buy from the correct source.  But are they trademarks or service marks?  And how do you know?

These are questions that I actually hear a lot, and it is mostly because people are overthinking it.   If the distinctive “thing” is used on goods (for example: coffee, software, board games or socks), it is a trademark.  If the distinctive “thing” is used on services (for example: legal services, consulting, tour guiding or car repair), it is a service mark.  Yeah, really, that’s it.  Service mark = services; trademark = goods.

If you are claiming common law rights on trademarks, you can use a TM like so: POWER GRIDTM  granola.

If you are claiming common law rights on services, you can use an SM like so:  POWER GRIDSM  personal training.

“But, but, I see TM on services all the time.  And you, Ms. Ogden, often say ‘trademark’ when talking about services.”  Yup, guilty as charged.  Because we tend to use trademark as shorthand to reference all of those indicators of source whether it is technically a trademark or service mark.  I admit it.

So don’t get flustered if your printer put ‘POWER GRIDTM  electron polishing services’ on your business cards instead of ‘POWER GRIDSM  electron polishing services’.  You are still claiming rights in the POWER GRID mark even if it has a T instead of an S.  It happens.  I can’t imagine too many cases being won or lost on the use of a TM versus an SM if you are truly using the POWER GRID mark on your premier atomic cleaning services.

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