This article provides a comprehensive guide to understanding the intricacies of business names, trademarks, and domain names. It aims to clarify the confusion that often surrounds these concepts, especially for small businesses and individuals who may not have access to legal advice. The article will delve into the purpose and differences between these three elements, how to protect them, and considerations when choosing them for your business cease and desist declaration.
Business Names and Their Legal Implications
If you plan to operate your business under a “fictitious” name, which is any name other than its legal name, you must register this name with the relevant government agency in your state. This could be your local county recorder’s office or your state’s Secretary of State Office. In countries outside the U.S., the appropriate body may be a government Department of Small Business.
Your “legal” name is your personal name if you’re running a sole proprietorship. If your business is a corporation, limited liability company, or limited partnership, the legal name is the name of that entity. If you conduct business under your own name or that of your corporation, you do not need to register a fictitious business name.
The Purpose of a Fictitious Business Name
The primary reason for registering a fictitious business name is to protect the public and other parties such as suppliers. Registration allows those who interact with your business to identify the person(s) behind the name. A fictitious business name is not a legal entity and cannot enter into contracts in its own name. Therefore, consumers need to verify that the person they are contracting with has the authority to enter into the contract as the business entity.
For example, if Alfreda Smith runs her florist business under the registered fictitious business name, “Blooming Right”, and wants to enter into a contract with Florist Supplies, Inc., the contract will be between Florist Supplies, Inc. and Alfreda Smith, doing business as Blooming Right.
It’s important to note that registering your business name in your county doesn’t prevent someone else from registering the same business name in another county. Registration only allows people who deal with your business to identify you as the person behind that business. It doesn’t give you exclusive use of that name for all purposes in all areas. Therefore, if your business name is also your business’s “brand”, you should also register it as a trademark, if possible.
Trademarks and Their Importance
A business name is not a trademark, and a registered business name will generally not protect the name from use by others. So, how do you protect your business’s “name” if it also identifies and distinguishes the source of your goods or services from those of your competitors’? The answer is federal trademark registration.
What is a Trademark?
A trademark is a word, phrase, symbol, or design, or combination of these, which identifies and distinguishes the source of the goods or services of one party from those of others. A service mark is the same thing, except it relates to the source of a service rather than a product.
Registration of Trademarks
A trademark does not need to be registered to attain status as a mark. If you have used a distinctive trademark in commerce, then you probably have a common law trademark already. However, registration confers benefits not available if you rely only on your common law trademark rights, such as the presumption that you are the owner of the mark for the goods and services specified in the registration and the entitlement to use the mark nationwide.
What Can Be Trademarked?
The U.S. Patent and Trademark Office won’t allow you to register a mark that is not distinctive; that is already in use or that contains names of living persons without their consent; the United States flag; other federal and local government insignia; name or likeness of a deceased U.S. President without the widow’s consent; words or symbols that disparage living or deceased persons, institutions, beliefs or national symbols and marks that are judged immoral, deceptive or scandalous.
Domain Names and Their Relation to Trademarks
How does your domain name figure into all of this? What is the interrelationship between registered trademarks and domain names?
Domain Names VS. Trademarks
As the law presently stands, it is possible to register any domain name that isn’t already taken without regard to whether that name is a trademark owned by a third party. However, courts are increasingly siding with trademark owners against domain name holders.
Domain Names AS Trademarks
If the domain name you want to use is not already a trademark, can you register it as a trademark? It depends. A distinctive, coined domain name may well be capable of trademark registration. However, to be registrable, the domain name must act as a source identifier for the product or service offered by the business, and not merely act as an address used to access a website.
In conclusion, to protect your business name from being copied and altered, you do not need to register any and all variations of the name. It is not the business’s name that requires protection from being copied and altered, it is the business’s trademark(s). If you are looking to establish a “brand” with your business name, make sure the name is the same as your trademarks and register your trademarks.