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USP vs Trademark vs Servicemark: what does it all mean?:

This month’s feature is taken from a recent e-mail correspondence with one of our subscribers. The subject of creating and protecting a unique slogan you might create to promote yourself is one that you might need to consider as part of your marketing plan as a voice-actor. I cover the subject of a USP (Unique Selling Proposition) briefly in my book. This article expands on that discussion with more information and resources. Please note that this article is not intended to be legal advise in any manner whatsoever. For specific legal questions I highly recommend you consult with an attorney familiar with Trademark and Copyright law. And now for the question:

QUESTION:

I have one question concerning a subject which has been slowing me down.  I already have a voice-over CD and an agent.  The USP on my CD, business cards, stationery, etc. is "The Voice of Choice."  Judging from the feedback I've gotten, "The Voice of Choice" works well for me.  Recently, I did an Internet search on "The Voice of Choice" and found only a few other people across the country who use it. 

Concerning USPs, you said in your book that "Possibilities are limited only by your imagination."  BUT... could there be any legal problem with using the same USP as somebody else? (And yes, I absolutely want to stick with "The Voice of Choice"... especially because it's all over my business cards, etc.) 

Could a USP be trademarked by another voice actor? If so, could they eventually sue me for using the same USP? 

I'm running into dead-ends everywhere concerning this subject.  Any assistance you can provide would be greatly appreciated. 

MY RESPONSE:

A USP (unique selling proposition) is defined as a phrase or statement that sets you or your business apart from your competition. Your phrase "The Voice of Choice", although very nice and appropriate for what you do, is technically not a USP - it is simply a slogan. A "slogan" can be a word or phrase that stands alone or is attached to a graphic and is intended to create a memory hook between the customer and the business - a catchy phrase that is memorable. For my production company, The Commercial Clinic, we use an orchestra conductor graphic with the attached phrase "orchestrate your message". The words "orchestrate your message" are a slogan. The combination of the graphic and the phrase make up our "logo". This phrase does nothing to differentiate us from our competition. It's purpose is to create a memorable link between the orchestra conductor graphic and what we do as a production company. The intended result is that anyone who sees the logo or hears the phrase will think of our business. However, our USP is "we make you sound great!" This phrase is actually the core of our USP. In our promotional materials, we expand on the USP with phrases like "we make you sound great with award-winning copy writing and voice-talent for radio and television commercials that get results." This is a more complete USP that clearly says something about what makes us different from everyone else. Here's another example for Jolt Cola (no, I don't drink the stuff). Jolt uses the phrase "The world's most powerful cola" as one of their slogans ( http://www.wetplanet.com/cola.html).  Although the phrase implies something about the cola, it'a not a USP - there is nothing there that differentiates it from all the other colas on the market. On the other hand, Jolt also uses (or used to use) the phrase "Jolt Cola - all the sugar and twice the caffeine." Now, that's a USP that defninitely differentiates Jolt from every other cola drink.

As for your slogan "The Voice of Choice" - if it's working for you keep on using it on your business cards. But you might want to think about turning it into a true USP for your other promotional materials. For example, to use your phrase as a USP in a cover letter to an ad agency, you might say something like: "Phil Merrifield is 'The Voice of Choice' for radio and television voice-over that grabs your audience and keeps them listening."

Developing a good USP is often not an easy task. Jay Abraham includes an entire chapter devoted to creating a USP in his book "Getting Everything You Can Out of All You've Got." I highly recommend his book.

Copyrights, Trademarks and Servicemarks can be a bit tricky to deal with. A Copyright refers to a creative work of original authorship. However Trademarks and Servicemarks don't apply to a creative work, but rather refer to the use of a phrase, logo or emblem in the course of doing business. The topic can get into some legal gray area, so I won't attempt to give any legal advise here. The US Government Patent and Trademark office has a page explaining what Trademarks and Servicemarks are all about at http://www.uspto.gov/web/offices/pac/doc/general/whatis.htm. To quote from their website:

 "A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and servicemarks.

“Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office. The registration procedure for trademarks and general information concerning trademarks is described in a separate pamphlet entitled  'Basic Facts about Trademarks'." 

To trademark (or servicemark) your slogan "The Voice of Choice" you would need to show the Patent & Trademark office how your use of the phrase would differentiate your business from other similar businesses. And even with that, you may be declined the servicemark. Generally, trademarks and servicemarks are reserved for brand names that distinguish a specific product or service. A common phrase like "The Voice of Choice" may not be trademarkable simply because it does not show any specific differentiation. However, if you use a specific font style, or graphic design for the phrase and can show how it differentiates your business, it may be. It's a very complex process. The US Government FAQ page will answer many of your questions at http://www.uspto.gov/web/offices/tac/tmfaq.htm#DefineServiceMark.

A simple search on the government website did not find any uses of "The Voice of Choice" as either a trademark or servicemark. But that doesn't mean it isn't registered or isn't being used by others. A more extensive search may be needed by visiting one of the Patent & Trademark Department Libraries (PTDL) at http://www.uspto.gov/web/offices/ac/ido/ptdl/index.html. Even if the phrase is trademarked or servicemarked, your use of the phrase may not be a conflicting use. It will depend on how the trademark is actually applied in business.

I seriously doubt that you will have any problems using "The Voice of Choice" on your business cards as a slogan. If you do have serious concerns about the servicemark issue, I would first suggest doing a search of the PTDL records, and if something shows up - see if the registered use is the same as what you are doing. If there is still a concern, you can always contact a Patent & Trademark attorney to get clarification.

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