Trademarking a Business Name - Explained
Why Trademark a Business Name?
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How Do you Trademark a Business Name?
You can trademark a business name under state or federal law. It can be protected under state common law, state statutory law, or federal statutory law.
Where Does Trademark Law Protect a Business Name?
A state law trademark protects the business name within the particular state. A federal trademark protects the business name across the United States.
What is a State Common Law Trademark?
Most states recognize business trademark rights under common law. That is, the states recognize a business name as trademarked as long as it meets state common law requirements.
The general requirements are that the business conduct business within the state under the name for which the trademark is claimed. Also, the name cannot already be subject to state or federal trademark protection.
Note: Some states have statutes that lay out the requirements to secure trademark rights within the state.
What is a Federal Trademark?
Federal Trademark law was established by the Lanham Act in 1946. It is codified at15 U.S.C. §§ 1051 et seq.
This Act allows business to trademark a business name if it meets the requirements for distinctiveness and does not create customer confusion with existing marks.
You can trademark certain combinations of words, visual images (logos), or images depicting words.
How to Secure Federal Trademark Rights for a Business Name?
To secure federal trademark rights, you must file a petition for trademark with the United States Patent and Trademark Office (USPTO).
What is a Trademark Search?
First, you need to make certain that the name of the business is not trademarked. You will want to do a search on the U.S. Patent and Trademark Offices website, via the Trademark Electronic Search System (TESS) system, 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.
What Goes Into the Trademark Application?
In the application, you will provide the information about the business and the filer.
You will identify whether you are petition for a word mark (trademarking the combination of letters forming the name) or image (which can be an image of the name).
You will include the intended name or the logo depicting the name.
You will identify the type of business (nature of the business or industry) by selecting a Class Identification Number.
You will also file a Specimen (sample) showing the name being used in commerce. This can be a website image, picture of the product in an advertisement, the name or a label affixed to the product, etc.
Note: If the name is not yet being used publicly, then you must file notice that you intend to use the name within 12 months. Within that period, you must provide proof (a specimen) that the name is being used in business.
Finally, you will pay the application fee.
How Does the USPTO Review Trademark Requests?
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).
Back to: Entrepreneurship
Why Trademark Your Business Name?
Trademarking your business name allows you to prevent other businesses from using your name. You work hard to build up a business brand. You do not want another business stealing your brand recognition by using your business name for their business.
Why is a Federal Trademark a Good Idea?
Simply using an available business name as part of your commercial activity is sufficient to secure state, common law rights in the business name. But, this is a very weak form of protection. 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 - that is, with the U.S. Patent and Trademark Office (USPTO).
This search engine will search many known databases to determine if the name has been trademarked in some other fashion.
When do You Use the TM and Circle R symbols?
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.