Same System, Different Subject Matter
The term "trademark" gets used loosely to mean any brand identifier — and legally, that's fine. The Lanham Act uses "trademark" as an umbrella term. But technically, when you're registering with the USPTO, the type of mark you file depends on what you're offering: goods or services.
A trademark, in its strict technical sense, identifies and distinguishes the source of goods — physical products that are manufactured or sold. The Nike swoosh on a pair of sneakers is a trademark. The Apple logo on a MacBook is a trademark. The Coca-Cola script on a bottle is a trademark.
A service mark identifies and distinguishes the source of services — activities performed for others, where no physical product is being sold. The McDonald's name on a restaurant is a service mark (the service is food preparation and sale in a restaurant setting). The Delta logo on an airplane is a service mark (airline transportation service). The FedEx name on a tracking website is a service mark (logistics and delivery services).
In Practice, the Distinction Is About Classification
The Nice Classification system divides the world of commerce into 45 international classes: Classes 1–34 cover goods, and Classes 35–45 cover services. When you file a trademark application with the USPTO, you select which class (or classes) you're filing in. That selection determines whether you're filing a trademark (goods class) or a service mark (services class) — not a separate decision you make.
Common services classes and what they cover:
- Class 35 — Advertising, business management, retail store services, online retail, consulting
- Class 36 — Insurance, financial services, banking, real estate
- Class 38 — Telecommunications, internet services, streaming
- Class 41 — Education, entertainment, online courses, media production
- Class 42 — Scientific and technological services, software as a service (SaaS), computer services
- Class 44 — Medical services, veterinary services, healthcare
The Symbols: ™, ℠, and ®
This is where the distinction becomes visible in everyday use:
- ™ — Used for unregistered trademarks on goods. Anyone can use this without registration.
- ℠ — Used for unregistered service marks on services. The service mark equivalent of ™.
- ® — Used for any federally registered mark — both trademarks on goods and service marks on services. This symbol can only be used once registration is granted by the USPTO.
In practice, most companies skip ℠ entirely and just use ™ for everything until they receive registration, at which point they switch to ®. The USPTO doesn't penalize this. The ℠ symbol exists as a technical distinction but is rarely enforced or required.
Real example: Before the FedEx trademark was registered, the company could have used "FedEx℠" to signal a service mark claim. After registration, it uses "FedEx®" — a registered mark covering both the company name as a service mark (delivery services, Class 39) and trademark (packaging goods, Class 16). One ® covers both once registered.
Many Businesses File Both
It's increasingly common for companies to file in both goods classes and services classes, because modern businesses often offer both. Apple sells physical devices (goods — trademark in Classes 9 and 28) and provides iCloud, App Store, and Apple TV+ (services — service mark in Classes 38, 41, and 42). A separate filing for each relevant class is required, and each comes with its own $250–$350 filing fee.
A restaurant chain like Starbucks is a good example of overlapping marks. "Starbucks" is registered as a trademark for coffee products (Class 30 — goods) and as a service mark for coffee shop services (Class 43 — restaurant services). The company holds both types of registrations because they operate in both spaces.
The Specimen Requirement Differs
When you file a trademark application based on actual use in commerce (rather than intent-to-use), you must submit a specimen — a sample showing the mark being used in connection with the goods or services. The specimen requirements differ:
- For goods (trademarks): The mark must appear on the goods themselves, on packaging, on labels, or in a display directly associated with the point of sale. A hangtag, a website product page, a shipping label with the mark — these work.
- For services (service marks): The mark must be shown in the rendering of the services. A website showing the mark in connection with the services, an advertisement, a business card used in connection with the services, or signage at a service location — these work. The mark on a letterhead alone typically doesn't.
Specimen refusals are common, especially in service mark applications where applicants submit materials that show the name but don't connect it to the actual services being offered. If you're filing for a consulting service, a screenshot of your website showing the company name alongside a description of the consulting services you offer is a good specimen. Just the company's homepage with the logo and no service description often isn't.
Frequently Asked Questions
Does it matter whether I file as a trademark or service mark?
You don't actually choose "trademark vs service mark" directly — you choose the correct international class for what you're offering, and that determines the type. Choosing the wrong class (filing in a goods class when you only provide services, for example) can be a basis for refusal or cancellation if the registration doesn't match your actual commercial activity. File in the class that reflects what you actually do in commerce.
Can a software product be both a trademark and a service mark?
Yes, and most SaaS companies need both. The software itself, if it's downloadable or delivered as a product, might fall under Class 9 (goods). The online platform or subscription service falls under Class 42 (software as a service). Large tech companies typically hold registrations across both. Each class requires a separate filing fee and specimen.
Do I need to use ℠ if I haven't registered yet?
No. Using ℠ is optional for unregistered service marks. You can use ™ for everything until you receive registration. The ℠ symbol has no legal weight beyond signaling an unregistered service mark claim. What matters legally is whether you're using the mark in commerce — the symbol is notice, not substance.
What's the difference between a collective mark and a service mark?
A collective mark is used by members of a collective organization to indicate membership — labor unions, trade associations, cooperatives. The mark signals membership, not the source of goods or services. A service mark is owned by one entity and indicates that specific entity's services. An example: the "REALTOR®" mark is a collective membership mark owned by the National Association of Realtors, usable only by members.