A Business Name or Do You Make it a Trademark?

 

As a small business owner, you understand the importance of protecting your business name. There are several ways your business could be damaged by a competitor using your name or logos. If you’re building a brand, investing in advertising and hoping customers can find you, you’ll want to make sure you’ve properly protected your business name so no one else can use it.

First, after applying to be a corporation or an LLC, the Secretary of State’s office is going to check to make sure that your proposed corporate name isn’t already in use by a different business in your state. Every state has its own laws about just how different a name must be from other business names. For example, some states will allow “Lori’s Nails” when there’s already a “Nails by Laurie” registered. Other states will reject it and consider the second to file as deceptively similar.

Once your LLC or corporation application is approved, your name is protected in the state: No other business will be able to form an LLC or corporation with the same name in that state. However, there’s nothing to stop a business that operates as a sole proprietorship or partnership from using your name in the state. It just won’t be able to register as an LLC or corporation with that name. In addition, registering your name with the state has no impact on what happens in the other 49 states. If you incorporated your business in Illinois, another business can use your same name in Texas or Michigan. And, it can even incorporate or form an LLC in other states with with the same name. Depending on your business type and model, brand protection at the state level might be sufficient. For example, if you are opening a local restaurant, you might not mind if another business uses your name in a completely different state. There’s little chance that a customer will confuse the two.

However, if you plan on expanding nationwide, selling your products/services across the country, or are just concerned that a partnership might use your name, then you should protect your name on a federal level with a trademark.

A trademark attorney Chicago IL residents rely on can help explain the function of trademarks. A trademark is a word, phrase, symbol or design (or a combination of any of these) that identifies the source of a product or service and distinguishes it from competitors’. Trademarks can be granted on distinctive names, logos and slogans. One example with Nike’s trademarks are not just their name, but swoosh graphic and the phrase, “Just Do it.”

Trademarks are granted at the Federal level by the U.S. Patent and Trademark Office (USPTO). The owner of a trademark has exclusive rights to the trademark and can prevent anyone else from using it. The protections given by trademarks extend to the state and Federal levels.

If you do choose to apply for a trademark, you should conduct a free basic search to make sure no one has a pending application with the USPTO for your proposed trademark (or something close to it) in a similar capacity. The next step is to contact an intellectual property attorney to undergo a comprehensive name search to check if someone is using your proposed name at the state or county level.

There are a few key reasons to do a search before you file. First, if you apply and your proposed name is already in use, your application will automatically be denied. That means you’ll lose your application fee, and the time spent preparing the application.  Some businesses determine they have adequate protection through simply registering their name with the state; others need exclusive name rights in every state. As you develop your business plan, carefully consider your particular brand protection needs. Contact our Naperville Trademark Attorneys for expert legal guidance at (630) 318-2606 today.

Konrad-Sherinian-attorney-at-law-chicago-illinoisThanks to our friends and contributors from the Law Offices of Konrad Sherinian for their insight into business law.

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