Protecting Your Small Businesses Identity: Trademarks and Trade Names (Part 1)

Before making a final decision about your business name, logo, and other identifiers, you’ll want to do some research to ensure someone else isn’t already using them, and that you are not infringing on another business’s trademark, which could result in legal action against you. 

Keep in mind that the main purposes of trademark law is to prevent confusion in the marketplace and to prevent unfair competition. It is possible for two different businesses to use similar trademarks if the goods and services are unrelated and there is no likelihood that consumers will be confused about who is selling what.

You can search for names, logos, and other marks that are already in use at the United States Patent and Trademark office using the Trademark Electronic Search System. Check your County Clerk’s office and your state’s registries for similar names, as well, to ensure that your business will stand out locally and that you are not infringing on a trademark used within your state that may not be federally registered.

Once you’ve chosen your company, product, or service names and identifiers, and determined that they don’t infringe on marks already in use, you’ll want to protect them to prevent a competitor from using them.

In the United States, by being the first person to use specific words, phrases, slogans, names, symbols, logos, and colors which represent your business, you automatically establish trademark rights to that name or logo. However, registering the name or logo with the United States Patent and Trademark Office and with your individual state provides you with an extra layer of protection, making it easier to assert and prove your rights if an infringement claim is brought against you or if someone else is infringing on your marks.

In order to register a federal trademark or service mark (for services, as opposed to products), you must be using that mark in interstate commerce. Doing business or advertising over the internet is considered interstate commerce. However, this is not the only requirement for federal registration. If the mark is too generic or simply descriptive, it will likely not be registrable. A strong mark should identify the source of the goods and distinguish them from other goods and services in the marketplace. The more unique the mark, the more likely it can be protected.

You may also need to register your business name as a D/B/A or file a fictitious name certificate if you are doing business in a name other than your own name or your business’s official corporate name. Your DBA certificate is usually filed with your county clerk’s office or with your state government, depending on where your business is located. 

If you plan to create a website for your business, you will also want to check domain name registries to see if the domain name that correlates with your business or DBA name is available. You can do a simple search by entering your business or DBA name into a search engine to see if anyone is using it, but you should also use a domain name search tool to see if the domain is available. If it is, you will want to claim it right away so that no one else can claim or use it first. Check the WHOIS database of domain names, which allows you to see who the registered owner of a particular domain name is.

Read part 2 in our series to learn the basics of applying for trademark protection. 

Properly creating and trademarking your company’s name, logo, etc. is a very important process when creating a business, and one that is fraught with pitfalls. To find an attorney experienced in trademark and other intellectual property matters, quickly post a short summary of your legal needs on Legal Services Link, and let the perfect attorney come to you!

For more tips on protecting your small business, check out our Small Business Legal Guide.