Initially, when the first trademark laws were being adopted, you could only trademark brands that covered physical products. You couldn't trademark brands to cover services. Then, at some point, they figured out that, hey, the brand is equally important to companies that offer services, they should be able to protect their brands as well! So they came up with the term "service marks".

What Constitutes a Product or Service?

There were (and still are) quite a few distinctions about what constitutes the use of your mark, depending on whether it is a product or a service. For example, for products, it is considered to be the use of the brand if you place it on the product itself or on its packaging. Naturally, you can't place the brand on the packaging of your service, so they allowed a different standard for service marks: a mark is considered to be used in connection with services if you display it during rendition or advertising of the service. 

With products, simple advertising is not enough, you have to mark the product or at least some materials that the buyer sees in the process of purchasing the product. So for some time, trademarks and service marks were getting separate legal treatment—until one day they realized that hey, you know what? The same brand can be used for both physical products and services. Sometimes, it's hard to separate the two!

Enter “Trademarking”

So, they started using the term "trademark" to cover BOTH marks that relate to products and marks that relate to services. The requirements for use still differ, but the term "trademark" is no longer only reserved for physical products. Naturally, if you use the term "service mark," it is now treated the same way as a trademark applied-for or registered in association with services.

Interestingly, as you may know, when you file your trademark application, you are supposed to break down the list of goods and services in association with which you are filing your trademark into one or more of the 45 categories called classes. For example, clothing is class 25, phones are class 9, and trademarking services are class 45. We have a separate video where I go over different classes in great detail.

The point I want to make is that out of 45 classes in total, there are 34 classes for products and only 11 classes for services. The reason being that historically, you could only trademark brands for products, and they only added services almost as an afterthought. So there you have it. For all practical intents and purposes, there is no difference between a service mark and a trademark applied for, in association with services. They are one and the same.

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