If two or more partners want to start a business together, one of the simplest options is starting a general partnership. This business structure grants equal rights to all participants, but also imposes some serious obligations – namely, since a general partnership is a partnership, this means that the partners have to stand up for the company’s liabilities with all their assets. You should...
A company cannot be founded without having an appropriate name. If the name happens to have brand potential, it quickly gains popularity and will be known for its impressive quality, so it makes sense to protect it. By registering your company name as a trademark, you can be sure that you’re able to retain the exclusive rights of your brand. There’s also the option of applying for a statewide trademark, or exploring federal trademark registration for your business. It is important to understand the differences between these various options, how to obtain them, and how much they cost.
Registering a company name
Before you get your business up and running, the first step is to register your company name. If you wish to start your business as a sole proprietor or a partnership using any title other than your real name, then you’ll need to select a title known as a DBA (short for ‘doing business as’). This will act as your new business name, so make sure it’s well suited to your company’s main cause or task. When considering which business name to register, you may also want to ensure that a corresponding domain name is available for any potential online presence you may need. Choosing a new DBA is also necessary if you already run an existing corporation or LLC but wish to do business under a different name.
Once you’ve selected the DBA name you’d like to register your business under, applications can then be sent to the local Secretary of State, either via online submission or through a consultation at a local office. The registration fee, as well the duration of the registration’s validity both vary from state to state; typically, registration lasts a decade and costs around $30. Visit the complete list of local Secretary of States to find out how much your state charges for registration.
Registering your business name will grant you official permission to conduct business in your state. However, this does not give you exclusive rights to your company name. To enjoy this benefit, you’ll need to register a trademark.
The term ‘trademark’ incorporates both a traditional trademark, which represents a good, and a service mark, which represents a service. They are typically names, slogans, logo designs or symbols that differentiate your business’ good or service from those of your competition. This means that you can trademark the same company name that you’ve registered and you also have the choice to select a slogan, an image, or the name of a popular product or service that your company offers. Trademarks usually last for as long as the owner continues to conduct business under them, and are indicators of intellectual property.
Registering a trademark establishes common law rights for your company. These rights include the exclusive right to use the trademark (with its corresponding goods and services) nationwide and a legal presumption that you are the owner of the name, slogan or image. However, these rights can be revoked if someone else is able to prove that their usage predates yours. This is why it’s so important to research your trademark extensively before applying.
Federal trademark registration in the USA is carried out by the United States Patent and Trademark Office (USPTO). Their website offers trademark guidelines, a search tool for checking the availability of trademarks, and a fee guide. The typical cost of a federal trademark is around $300. State trademarks can be significantly cheaper, but are much more limiting and do not grant nationwide rights. More information on these can be obtained from your local Secretary of State.
Once your trademark is accepted, you will receive official listing on the USPTO website, printing in their Official Gazette (OG), and a registration certificate. Additionally, your trademark will now have the right to be followed by the ‘®’ symbol, a nationwide indicator of exclusivity and quality. Your trademark will command legal rights against anyone who attempts to register a trademark deemed ‘confusingly similar’ to yours, and you can record your trademark with the United States customs and border protection, which can help stop the import of any goods considered to be infringing or counterfeit. Lastly, your federal trademark registration can grant you the opportunity to register your trademark in global markets.
Is my trademark protected in a foreign country?
Bluntly put, a U.S. Trademark Registration doesn’t protect your trademark in a foreign county. This is because trademarks are territorial and must be filed in every country where you want the protection to apply. However, if you happen to own a trademark application before the U.S. Patent and Trademark Office (USPTO) was founded in 1975, or have a registration issued by the USPTO, you may seek registration in any of the countries that have joined the Madrid Protocol. To do this, you simply have to file an 'International Application' with the International Bureau of the World Property Intellectual Organization (WIPO) via the USPTO. As of late 2017, there are 100 members of the Madrid Union, covering 116 countries, which means your trademark would be protected in all of them.
You should consider registering transliterations in case the country in which you want to register uses a different alphabet. Foreign entities may trademark the name of your company written in their alphabet to make a transliteration of your trademark, which they could then sneakily trademark themselves. Already registering the transliteration would prevent this from happening.
Not all names can be trademarked
If you’re in the donut making business, you might have come up with the great idea of trying to trademark donuts as your name and maybe even attempt to secure donuts.com for yourself. Unfortunately, you won’t have any luck, since the law doesn’t allow a company to claim a generic term as its proprietary mark. So terms like 'chairs', 'dogs', 'computer', etc. are out of the question. Everyone has the right to be able to use these words when describing their products or services, which is why they can’t be trademarked.
A case study is 'Hotels.com' who believed they could trademark the name, since the dot com suffix took away the generic-ness of the term. The Federal Circuit Court of Appeals turned down their application on the grounds that adding the suffix doesn’t change anything, since it’s still seen as the word 'hotels'.
Even words that are similar to the words they’re referring to can be tricky. The U.S. Patent and Trademark Office wouldn’t accept the name 'Lektronic' because the word too closely resembles the term for electronic goods.
An interesting case is that of 'Apple Inc', which is allowed to do business under the fruity name since it trades in the hardware and software sector, and not in the food sector.
Trademarks that have become generic and genericized
Even though you have legally protected a trademark, it doesn’t necessarily mean it’s protected forever. It’s rare, but has happened that some trademarks, which have become genericized, have lost their legal status. This means that the names have become generic terms and are being used to generalize all similar products. For example, Thermos was a name trademarked by Thermos GmbH, but now this word is used to refer to all vacuum flasks, whether manufactured by the Thermos GmbH or not. Here are some other examples:
- Flip phone
There are many different options for registering your business name and protecting your company. Whether you decide to simply register locally under a DBA, register for a state trademark, or apply for federal trademark registration, it’s important to ensure you understand exactly how the process works, where to send applications, and how to conduct proper research. If you are unsure of which path to take, consulting an attorney can be a useful first step before diving headfirst into business. Alternatively, there are several companies that can help you register a domain name or trademark for a fixed fee.