A common source of confusion is whether the name of one’s company is a trademark. The short answer is that it can be. The rest of this blog will explain the answer more fully.
But, before we can proceed, let’s define some terminology:
Trade Name – “Any name used by a person to identify his or her business or vocation,” per Section 45 of the Lanham Act. This means that a trade name is any name that identifies a business entity, and includes everything from corporate names, assumed names, the name of sole proprietorships and charitable institutions, as well as fictitious business names.
Fictitious Business Name – A type of trade name. A fictitious business name or an assumed name occurs, in general, when an organization goes by a name other than the last names of the owners or when a person uses a trade name other than his surname.
Trademark – A word, phrase, symbol or design that identifies and distinguishes the source of goods or services of one party from those of others. (Read our blog for more on how to choose a strong trademark).
When a Trade Name is a Trademark
A trade name is often used in one of two contexts. In the first situation, the trade name is used for bank accounts or to file business documents or for legal purposes, such as responding to a lawsuit. In the second context, a trade name is used to market goods/services or to otherwise identify the source of goods/services. When a trade name is used in the latter scenario, as an identifier of goods/services, then it is being used in a trademark sense.
Distinguishing between when a trade name is used for a non-trademark versus a trademark purpose can be confusing, especially when the trademark is used in association with a service; nonetheless, the take-away here is clear, a trade name can be a trademark, when the trade name is used as a trademark.
A Common Misconception – Registering Your Trade Name With a State Agency Does NOT Give You a Trademark
It is a common misunderstanding is for people think that if they register their trade name with the state, they have a trademark. That is incorrect.
Registering your trade name with the state only means that you have a valid trade name, not a trademark. For your trade name to be a trademark, you must take the additional step of using it as a source identifier of the goods or services you provide. Most importantly, if you want your trade name or a variation of it to act as a trademark, we highly recommend you go the additional step and have it federally registered with the USPTO. Registering your trademark on the federal register grants you, in most situations, the best protection for your trademark.
Please contact us today if you have any questions about trade name, trademarks or other intellectual property questions.