To Trademark or Not To Trademark? -- So You Want To Start A Business --

streetstyle (72)in #business • 8 years ago

WHAT'S IN A NAME

People often ask me for business advice since I have been Self Employed for most of my adult life. I have had several different careers as well as have started, owned and currently own several different businesses. Some would say I am an Entrepreneur, I sometimes jokingly say I am an "Entre-Manure." There is a lot of B.S. when starting and/or owning your own business, along with all the do's and don'ts. Since I am not your lawyer or business adviser, this is not legal advice, this is for information purposes only, and you should consult a qualified licensed attorney for all legal advice.

One of the things that a new startup will encounter is how or what to name the business. This is called a "DBA" or Doing Business As, if the business name will not be that of the owner/s. During this process of choosing the name or DBA, this new venture should consider a few things before selecting the name. All businesses today must consider their Internet Web presence with a website or Domain Name. The owner or investors of this new start up should select a few names to choose from just in case those names are already taken by another business. Once a list of possible names for the new startup are chosen, it will be time to check with the local county business registrar-recorder to see if the first name on the list is available and with an Internet company like Network Solutions for Domain name availability.

Another business aspect to consider will be the business ownership structure. The more common types of business or companies that exist are sole proprietor, a partnership, a Limited Liability Company or a Corporation. Sole proprietors and partnerships need only check with local city and county for availability of their name, while those that choose LLC's or to incorporate, will also have to check locally, as well as with the state where they will form the LLC or corporation.

Once the local agencies have been checked for availability of the business name, then next thing to consider is checking with the United States Patent and Trademark Office to see if the name selected has been trademarked for the type of business to be conducted. Hopefully no one has trademarked the favorite name for the new business venture. Do not despair if it has, there are some exceptions but now there will be some homework to do or an attorney must be retained. If the name has not been trademarked, then it is up to the business owner/s whether to trademark the new business name or not.

Trademark or Not to Trademark?

Any business that has checked for its domain name and business name with local and state agencies as well as the USPTO and did not find another business with the name chosen for the new business is in the clear. As soon as the business sells its first t-shirt, or product in commerce, that gives the business one legal step up above any other business in U.S. trademark law, even if the business name is not a registered trademark with the USPTO and someone tries to register that same name later. This is considered trademark common law. Be sure to save that first sale's receipt, should the business opt not to trademark the company name, as proof of first date in commerce.

First Sale Celebration
LLC's and Corporations do gain further strength in protecting their business name from infringement without official trademark protection. The state of filing for the business entity will cross reference the chosen name to make sure that there is not another business with a similar LLC, Corporate or Trademarked name within the same state. The business name can also be trademarked with the State, but Federal Trademark is by far the legally stronger registration. Sole proprietors and partnerships do not fall under this state protection, and thus another business can start in another county with the same unprotected name.

Trademark common law affords most small businesses some protection. Having a registered trademark with the USPTO affords the highest protection in the U.S. against name infringement. Therefore, registering the business name as a trademark will depend on the business plan/s (staying local or going national for example) and the business budget (DIY or hire an attorney) all along knowing that the business name will have at least some trademark common law protection. The end goal though, should ultimately be a registered trademark with the USPTO for the strongest protection against trade infringement and/or cybersquatting.

10/28/16
Full $teem Ahead!
My Top Blogs

- Hiccups for 3 Days & The Fix

- Caffeine Madness