BitLaw

1301    Service Marks

Section 45 of the Trademark Act, 15 U.S.C. §1127, defines "service mark" as follows:

The term "service mark" means any word, name, symbol, or device, or any combination thereof--

• (1) used by a person, or
• (2) which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this [Act],

to identify and distinguish the services of one person, including a unique service, from the services of others and to indicate the source of the services, even if that source is unknown.  Titles, character names, and other distinctive features of radio or television programs may be registered as service marks notwithstanding that they, or the programs, may advertise the goods of the sponsor.

Therefore, to be registrable as a service mark, the asserted mark must function both to identify the services recited in the application and distinguish them from the services of others, and to indicate the source of the recited services, even if that source is unknown.  The activities recited in the identification must constitute services as contemplated by the Trademark Act. See TMEP §§1301.01 et seq.

If a proposed mark does not function as a service mark for the services recited, or if the applicant is not rendering a registrable service, the statutory basis for refusal of registration on the Principal Register is §§1, 2, 3, and 45 of the Trademark Act, 15 U.S.C. §§1051, 1052, 1053, and 1127.

See TMEP §1303 concerning collective service marks.