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Verify Availability of the Business Name Under Federal Trademark Law
At the federal level, you need to make certain that the name of the business is not trademarked. Note, you can trademark certain combinations of words or visual images depicting words. In either case, you will want to do a search on the U.S. Patent and Trademark Office’s website to make certain that your desired name is not trademarked.
Sometimes a name will be used in conducting business within an area, but will not be registered. It is important to do an internet search to determine if the business name is already being used. The original user of the business name may have common law rights in the name, even if the name is not registered with the state or local government. This is a form of local (statewide) protection.
Trademark Your Name
As noted above, simply using an available business name as part of your commercial activity is sufficient to secure state, common law rights in the business name. This is a very weak form of protection, as it only protects the business name within areas where the business operates or actively engages customers or clients. Another business could use the business name in regions where the original business does not carry on activity. Using a business name in a region effectively locks others out by preventing the use of a like business name in the region. In order to receive national rights in a trademarked name, the business must register the trademark federally.
The best way to protect the use of your business name throughout the United States is by filing the name with the U.S. Patent and Trademark Office (USPTO). Trademark law allows individuals and business to trademark certain words or word combinations and images (which may include words). In order to trademark your name you will need to conduct a search for availability on the USPTO website, via the Trademark Electronic Search System (TESS). This search engine will search many known databases to determine if the name has been trademarked in some other fashion. While this database is very thorough, it is not entirely complete. If you attempt to trademark your name, a trademark attorney working for the USPTO will do a diligent search across the United States to make certain that the name is not in use in other areas. If the name is being used commercially in a certain area, the name has common law protection. Therefore, you may not be able to register the name federally. In that case, you are left with the option of registering the name in any state in which you do business and it is available (not already registered).
Note: You do not have to use a “TM” symbol to protect the rights. Putting the “TM” symbol gives third parties notice of assertion of trademark rights. Once a trademark is federally registered, the business may employ the “R” symbol to demonstrate that the business name is a federally registered trademark.