Trade Name vs Trademark

The terms trade name and trademark might sound similar, but they are distinctive in the kinds of protections they offer under law. You do not necessarily hold a trademark on your trade name, though you can apply for one. Additionally, even if you register for a trade name it does not mean that you are clear of trademark infringement.

These distinctions make it necessary for business owners to understand the vital differences between their trade names and any trademarks they might hold.

Every business has a trade name

trade name is the name a company uses for official business, it’s effectively the brand name. The company must register for a trade name with appropriate authorities, usually at the state and sometimes at the county level. This registration is often referred to as a “doing business as” (DBA) or a “fictitious business name.”

In some states, sole proprietorships doing business as the owner’s name don’t have to file for a trade name for the company name. But even slight modifications–a John Smith who owns John Smith Plumbers, for instance–may have to file for a DBA. The secretary of state office generally wants to see the assumed name match the goods and services provided by the business.

Restrictions and rights

There are few restrictions when filing for a trade name. Typically a state will only check to ensure two factors:

1. That the trade name does not match any other currently registered trade names.

2. That the trade name does not blatantly misrepresent the business. For instance, the name John Smith Electricians could be rejected as the trade name for a carpentry business.

Once approved, a trade name grants a company the rights to use that name for banking, billing, identification and tax purposes. The business can then decide to use the trade name for other purposes, but that’s where it could find itself infringing on existing trademarks.

Use in commerce

A company can use its trade name on products and services, but not without restrictions. Any use of the trade name by a business entity to identify commercial products and services is subject to trademark law.

In other words, just because the state approved your trade name does not mean you have any trademark rights. In fact, you might be infringing on an existing trademark, which can result in legal action against your company by the owners of the intellectual property.

The only way to be sure is to run a trademark search with the USPTO. If your trade name has not already been trademarked, you can then file a trademark application to start the trademark registration process. Until you complete this process, your trade name will hold no federal rights for use in commerce – only a registered trademark or service mark will get your small business that level of protection.

Understanding the Role of the Trademark Office

The trademark office plays a pivotal role in the world of intellectual property. It serves as the authority for registering and managing trademarks, ensuring that businesses and individuals can protect their unique brands and identities. The United States Patent and Trademark Office (USPTO) stands at the forefront of this process, overseeing the registration of trademarks and ensuring that they meet specific criteria before granting protection.

Levels of Legal Protection: State vs. Federal

Trademarks can be protected at both the state and federal levels, each offering its own set of advantages. Registering a fictitious name at the state level allows businesses to use that name within the state’s boundaries. However, for broader protection that spans across state lines, businesses should consider securing a federal trademark through the USPTO. This federal registration offers nationwide protection, a presumption of ownership, and exclusive rights to use the trademark on products and services.

The Significance of Common Law in Trademarks

Common law plays an integral role in the trademark landscape. Even without formal registration, businesses can acquire trademark rights based on their continuous and consistent use of a mark in commerce. These rights, known as common law rights, arise naturally and can offer protection against infringement. However, it’s essential to note that common law rights are geographically limited to the area where the mark is used and might not provide as robust protection as a registered trademark.

Consulting with a Trademark Attorney

Navigating the intricacies of trademark law can be daunting. This is where the expertise of a trademark attorney becomes invaluable. These legal professionals specialize in understanding the nuances of trademark law, guiding businesses through the registration process, and offering advice on potential conflicts and infringements. By consulting with a trademark attorney, businesses can ensure they take the necessary steps to achieve maximum trademark protection and avoid potential legal issues.

Comprehensive Trademark Protection

Trademark protection isn’t just about registering a mark; it’s about continuously monitoring and enforcing those rights. From common law protections to federal registrations, businesses must be proactive in ensuring their trademarks remain protected. This involves regularly monitoring the market for potential infringements, renewing trademark registrations, and taking legal action when necessary. By understanding and leveraging the layers of trademark protection available, businesses can safeguard their brand identity and maintain a strong market presence.

Common Trademark Topics for Business Owners

Xavier Morales, Esq.

About the Author:

Xavier Morales, Esq.

Mr. Morales founded this trademark law practice in January 2007 with the goal of providing intellectual property expertise to entrepreneurs and businesses around the country. Since then, he has filed more than 6,000 trademarks with the USPTO. You can learn more about Xavier here.

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