What are the Main Types of Trademarks?
Most people, trademark attorneys included, use the word “trademark” to refer to any and all types of trademarks. However, there are actually four distinct categories of trademarks. The two main types are trademark and service marks. There are two other kinds, though: certification marks and collective marks. You undoubtedly have interacted with all four of these, probably without realizing the difference.
In this post, I delve into the four types of marks, what they cover, who owns them, who uses them, what they do, and how they are different. I also provide some real-life examples of each kind to help understand each type.
Trademarks
What is a trademark?
A trademark is any word, phrase, logo, symbol, design, or other “thing” that is used to identify and distinguish the goods of one seller or provider from those of others. The key here is that trademarks are used with goods and products, not services.
Trademarks provide legal protection to the owner’s brand identity, preventing others from using a similar mark that may cause confusion among consumers or dilute the brand’s distinctiveness.
In this sense, trademarks are primarily indicators of source. To protect that function, the owner of a registered trademark has the exclusive right to use the mark in connection with the goods specified in a trademark registration or used under the trademark. This allows the owner to prevent others from using a confusingly similar mark within the same industry.
What are some examples of trademarks?
These are pretty easy. You know lots of trademarks: NIKE, APPLE, HYDROFLASK. Those are all basic, famous examples of trademarks known as word marks.
Trademark can also be in the form design marks, like logos. Those are easy, too – just think of Nike’s Swoosh, or the Starbucks mermaid, or the Mercedes Benz hood ornament.
What does a trademark protect?
Fundamentally, the purpose of a trademark is to distinguish the products of one business from those of another, and in doing so, to prevent consumer confusion. Therefore, trademarks protect both the public and the trademark owner.
Trademarks protect the owner by ensuring that all the hard work, time, and money spent in building a brand or a product identity can’t be ripped off by another company. Trademarks protect the public by allowing a consumer to know that the experience he or she had with a product bearing a trademark is likely to be repeated when using a different product with the same trademark.
As an example, just before I bite into a McDonald’s hamburger, I know pretty much what that hamburger is going to taste like, because I have eaten a McDonald’s hamburger before. The trademark protects my expectation of consistency.
Who owns a trademark?
Trademarks are owned by the entity responsible for ensuring the quality of the product bearing the trademark. Often times, this is also the entity that is selling the product.
But not always. A trademark owner can license its rights to another company. Disney makes some products itself, but it also licenses its trademarks to lots of companies for use with toys and clothing. Those other companies are the ones actually manufacturing the toys and clothing, but they don’t own the trademarks – they just get permission to use them. Disney retain ownership.
Trademarks can be owned by individuals, small businesses, corporations, non-profit organizations, and even government entities.
Who uses a trademark?
Usually, the trademark owner is the party that also uses the trademark. The manufacturer or seller of the product frequently puts its trademark on its own products. But in the case of a license, a licensee will use the trademark with the permission of the licenser – the trademark owner.
Service Marks
What is a service mark?
A service mark, like a trademark, can be a word, phrase, logo, symbol, design, or other “thing.” But a service mark is used to identify and distinguish the services – not the products – of one provider from those of others.
What are some examples of service marks?
These are pretty easy also. Facebook, Google, Visa are all service marks. Why? While Facebook can be thought of as a product, it really is a service provided to you. Facebook lets you use as an app and it connects you to friends and news. Google is a service you use to search the Internet. Visa doesn’t make a product that you buy, it connects credit and debit cards with its merchant processing services; you use the Visa network service when you make a purchase.
What does a service mark protect?
Like a trademark, a service mark protects the distinctive elements that identify and distinguish services provided by a business or organization. Here are some things that service marks protect:
- Brand Identity: A service mark ensures that consumers can easily identify and differentiate the services offered by that specific business.
- Source of Services: A service mark establishes the source or origin of the services provided by an entity. It gives consumers assurance about the quality and consistency of the services associated with the mark.
- Reputation and Goodwill: By protecting a service mark, businesses can safeguard their reputation and goodwill built over time. Services marks prevent others from using similar marks that could potentially confuse consumers or dilute the value of the established brand.
Who owns a service mark?
The owner of a service mark is the entity that has exclusive rights to use the mark in connection with the specified services. Usually, this means the party that actually offers the service. However, in some cases, one party will own the service mark but allow another company to use the mark. That’s called a license.
Who uses a service mark?
Most frequently, the owner of the service mark also is the user. Under a license, though, the owner can allow another party (or several other parties) to use the service marks. The owner retains quality control through a license agreement that defines how the other party can use the trademark.
The owner of a service mark can be an individual entrepreneur, a small business, a corporation, a non-profit organization, or even a government entity. It is common for businesses or organizations to own service marks to protect their brand identity and distinguish their services from those of others.
This is how most franchises operate. A franchise entity or organization may own a service mark while granting individual franchisees the right to use that mark in their local operations. The local franchisees get the benefit of the established consistency and recognition of the trademark, and the franchise owner maintains that quality and gets paid.
Certification Marks
What is a certification mark?
A certification mark indicates that goods or services meet certain standards or characteristics. In other words, they indicate that a product or service has been certified by some third party. The certification could mean that the product has been tested and approved, or that the services are being provided by someone who has been certified under a recognized program. I’ve written a lot more about certification trademarks here.
The organization or entity providing the certification must exercise control over the use of the mark and must have established standards for the use of the certification mark.
What are some examples of certification marks?
You likely come across many certification marks every day without even realizing that they are trademarks. But, in fact, the examples below are actually certification marks owned, maintained, and carefully controlled by an entity. In other words, you cannot just start using one of the below certification marks – you have to seek approval. Some examples:
- LEED and the various levels of LEED (LEED AP, LEED PLATINUM, LEED GOLD, LEED SILVER) are all certification marks since around 2010 for “environmental design, construction, and operation of buildings and real estate.” In case you aren’t familiar with them, this is a certification recognizing build quality and environmental performance characteristics of a building. The US Green Building Council in DC runs the LEED program to rate buildings.
- UL certification indicates that a product has been tested and meets certain applicable standards, usually regarding safety. A company that wants to mark its product with the UL certification mark has to contact Underwriter Laboratories and request certification.
- Star-K for Kosher. The Star-K Certification company actually inspects foods, appliances, and other products for compliance with kosher requirements in accordance with Orthodoc Hebrew religious rules or requirements.
- The Energy Star logo indicates that appliances and electronic products have been tested and meet high standards for energy efficiency. The government owns this certification trademark: the Environmental Protection Agency runs the certification program and determines who can use the mark or not.
- UDSA Ogranic. As you can probably guess by now, this is a certification mark indicating that the food product has been tested by the US Department of Agriculture and meets organic requirements. More specifically, per the trademark registration, it indicates that a product is “a raw, fresh product, or processed product that contains organic agricultural ingredients, produced and processed in accordance with the National Organic Program.”
What does a certification mark protect?
Certification trademarks protect the public’s understanding that a product or service meets a certain quality level or established standards. Those standards are usually set by the mark owner, who may create requirements for quality, safety, sustainability, fair trade practices, industry regulations, or the like. The marks are essentially symbols of trustworthiness.
Who owns a certification mark?
Usually, a certification mark is owned by an entity that establishes certification standards and administers a certification program for those standards. Sometimes, the mark may be owned by a company that only sets the standard, but that contracts with a third-party company to run the certification program. It is rare that the owner of the certification mark will also use the mark (except in advertising its own program).
Who uses a certification mark?
Only parties that have been properly certified by the certification mark owner or its agent are allowed to use the certification mark. Users may be companies or individuals, depending on the type of product or service being offered. For example, a life coach may use a certification trademark to indicate that she has completed training through a particular well-known coaching company. Or, a lettuce producer may use certification marks to indicate that its greens are organically-grown and ethically harvested.
Collective Marks
What is a collective mark?
A collective trademark is a trademark that is generally used by a member of a collective organization or an authorized user. They are used and shared among members of a specific group or association to show membership or to show common origin, quality, or characteristic of the products or services offered by the members of the group.
What are some examples of collective marks?
Some better-known examples of collective marks include:
- 4-H Club Emblem – members use this trademark to show they are part of 4-H
- Most motorcycle clubs that have registered protection in their logos and patches protect those as collective marks. The patch shows membership in the motorcycle club. Lots of other clubs use collective marks in this same way.
- Girl scouts use the well-known patterned heads logo to show they are members of the Girl Scouts of the USA.
- Most fraternities and sororities on US college campuses are using their Greek letters as collective trademarks, to show that the house or the individuals belong to a particular Greek social club.
What does a collective mark protect?
Collective trademarks protect the group’s ability to identify and distinguish members of its group from others. They can also be used to convey information about goods or services offered by members of a group, and thus to protect the public from confusion about goods and services provided by other groups.
Who owns a collective mark? Who uses a collective mark?
Like a certification trademark, a collective mark is owned by a single entity but is used by others. Usually, but not always, the single entity is an association or a group or a membership body. In such cases, the users are the members of that group or association.