Q: My company makes games for its benefit. Others buy/download our games. Would we use a trade or servicemark for our brand
Unsure if I should use Class 09 or Class 42 for my company's brand name. Is making the video games I want to make, but then selling and/or offering them to be played by others considered a service for others?
A: The answer to your question depends on the specifics of your business. However generally speaking, a trademark symbol is used to identify the source of 'products/goods' that you are selling; and a service mark is used to identify the source of a 'service'. For example, when a potential customer sees your mark, does the mark identify the source of certain products that you sell, or does it identify the source of services that you offer? Also, note that it is possible to register a mark in multiple classes/categories (as a trademark and servicemark depending on your type of business). In your case, it sounds like your mark identifies the source of the video games (goods) that are being offered for sale.
Whether your are using a mark in connection with your goods or services, the terms "service mark" and "trademark" are just that, designations of categories. It very well may be that the mark you adopt can be applied to services and to goods. The "sm" and "tm" designations can be used appropriately under common law usage. It is a good idea to put either one near your mark until you get your mark registered with the USPTO. Once the mark is registered you will be able to use the R in a circle indication.
In any USPTO filing you need to designate the class or classes description(s) for good and services you want the mark to be associated with. Class 9 is associated with computer and other devices. Class 42 is for services associated with scientific and technical services by professionals. It sounds like the classes you would want to explore would be associated with games and the digital services to provide access to the games. Best to consult with a local business attorney familiar with trademark protection. The lawyer can help you understand the difference between the name of your company and any mark it may adopt. Good luck.
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