All businesses benefit from trademark registration. Does it follow that all businesses should trademark their names?

In many instances yes, companies should trademark their names. It provides a level of protection at the federal level. But it is not necessarily the top priority for certain types of businesses.

So do you need to trademark your business name? Your company’s particular circumstances will determine the answer to that question.

Common law trademark rights

Even if you never file a federal trademark application, you can still claim rights to the marks your business uses. As long as you were the first to use the mark in commerce, you technically have trademark rights. You will, however, find it difficult to enforce them without a federal trademark registration.

Specifically, you might find it difficult to prevent others from using your trademark. If you own a federal trademark registration, you have clear grounds to sue those who infringe on your mark. If not, you have to take pains to prove that your use of the mark predates the infringing use. You can prevail, but it can prove costly.

Typically, you will save time and money by filing a federal trademark application and acquiring trademark rights that way. It costs money up front, but it can save you plenty in legal fees if you ever face an infringement case.

Trademarks and identity

Does your company name identify your products? In many cases a company will use distinctive branding on its products independent of the company name. In that case, it is much more important to trademark the product or brand name than it is the company name.

Take the mobile game developer Warballoon LLC, for instance. They created the hit game Star Command, and in 2012 filed a federal trademark application for that name. The USPTO approved them in late 2012. Yet, Warballoon did not file a trademark application for its own name.

Why?

People generally don’t associate Star Command with Warballoon. Perhaps some insiders do, but the general public sees only the brand Star Command. (Taking matters further, the App Store and Google Play list the game’s developer as Star Command, LLC.) This probably won’t matter much to Warballoon. They trademarked their branded entity.

Non-trademarkable names

In some cases a company might not be able to register a trademark for their name. That doesn’t always mean that they can’t use the name at all. But it may mean that another company owns trademark rights similar enough that the USPTO would not grant another registration.

The developer Tapbots provides an example. Their hit app, Tweetbot, ranks highly among iPhone Twitter apps. Yet they have not attempted to trademark the name, despite its strong branding. That is likely because Twitter, Inc. owns trademark rights to “TWEET”. It’s also possible that another company owns the trademark rights to the term “BOT” (there are more than 300 live entries in the USPTO database).

It seems unlikely, at this time, that Twitter, Inc. pushes a trademark infringement case on Tweetbot. But Twitter, Inc.’s superior rights prevent Tweetbot’s developer from owning federal trademark rights for the name of the app.

Reasons to register a business name

Eventually, successful businesses will do well to register their trade names as trademarks, even if they are not the main identifying features of the business. They realize many benefits of spending the few hundred dollars to register their marks:

  • The sooner they register, the better protected they are against trademark trolls
  • They create a federal record of their trademark rights, leaving few excuses for infringers
  • They can more easily pursue legal action against infringers
  • They can use the ® registered trademark symbol to publicly declare their rights

Companies should view trademarks in terms of priorities. The most recognizable marks should be protected first. That will protect the company against those wishing to piggyback on its success. The more visible the company name, the greater the need for a trademark. It is also highly advisable that you contact a trademark lawyer, especially if you are a small business owner.

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