Do You "Own" Your Business Name?

Do You "Own" Your Business Name?

by Michelle Kaminsky, Esq., October 2010

You’ve worked hard to come up with a name, logo or slogan for your business. It’s appropriate, catchy and—well, let’s be honest—it’s perfect. But do you own it? The answer depends on a few things:

Many small business owners, complying with their state’s law, register their business name with the state. While this generally means no one else in your state can use the same business name to sell similar products or services, such protection may not extend to the entire country. If someone else has already registered your name in your state for the same or similar goods or services, you will likely be refused registration.

Aside from any state registration you may decide to do, you must actually use your trademark to sell your goods or services for it to be “yours.” In the US, trademark rights begin with use in commerce—that is, as soon as you use your mark as a trademark (to sell or advertise something) only then does it become a trademark, and can you lay claim to it. But owning it and being able to enforce your ownership rights are not the same thing. Only federal registration gives you truly comprehensive enforcement rights. Federal registration of trademarks is done by the US Patent and Trademark Office (USPTO).

According to the USPTO:

A trademark includes any word, name, symbol, or design, or any combination used, or intended to be used, in [interstate] commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.

How to Apply to Register a Trademark

1. Conduct a thorough search of the USPTO database to look for similar marks to yours, used in connection with similar goods and/or services. You can do this yourself by using the Trademark Electronic Search System (TESS) database. If a potential conflict turns up in your search, you may choose to proceed or change your mark, depending on how much the potential conflict concerns you. An attorney can be helpful in making this decision.

2. Once you’re satisfied that there are no competing registrations that might stop your mark from being registered, apply to register your mark with the USPTO.

3. Wait. The USPTO generally takes around 3 months to assign an application to an examiner. First contact can come anytime from then on, and final action on an application currently averages around 11 months. You can check the status of your application through the Trademark Applications and Registrations Retrieval (TARR) service.

For more complete information on applying for a trademark, visit the LegalZoom Trademark Education Center.

This article was originally published in November, 2010 and updated September, 2011.

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