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

§§1301.01–1301.01(b)(vi).

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. §§1051–1053

,

1127

.

See

TMEP

§1303

concerning collective service marks.