Many new business owners will create a LLC or Corporation by filing incorporation documents with their Secretary of State or will simply file for a DBA or Fictitious Name and operate as a sole proprietor.
Unfortunately, many of those new entrepreneurs also assume his or her “official state filing” means he or she owns that company name. While sometimes these filings will help establish first use, they don’t necessarily mean that you “own” your company name. Here’s why.
DBAs & Fictitious Names
When an individual hangs her shingle out to do business on her own, she will be required by most states to register her business name with the Secretary of State. Some states call these DBAs, others Fictitious Names, and some actually don’t require such filings at all.
In most states, if someone else has already registered a particular DBA or a company name that is identical to your intended name, then your filing will be rejected and you will have to file for a different name.
This gives off the false impression that such filings create ownership in a name in the state’s registry. Unfortunately, having a registered DBA or Fictitious Name with your state may give you the right to be the only company using that name with the state’s official records, but it doesn’t mean other people can’t also use that name in your state or in other states. You might have some common law or federal trademark rights, but those rights will stem from your use, not your state filing.
Company Names
In a similar situation, you might consider creating a LLC or a Corporation within your state. When you do so, you must create a company name and file articles of organization or articles of incorporation with your Secretary of State.
However, just like above, you can’t create a company using a name that someone else has already registered in your state because the state will only allow one company to use a specific name.
Again, just like above, once you register your unique company name, you might think you can stop others from using it. However, the only thing you can stop is other people from registering the same name in the same state. But other people can still use it in commerce (unless you have common law or federal trademark rights).
Trademarks
The two above examples are registrations you can obtain from your state to use that particular name within a state. However, they don’t create trademark rights in your business name because trademark rights (both common law rights and federal rights) stem from use in commerce.
Unlike the two examples above, you cannot obtain trademark rights simply by filing a document. You actually have to use the mark in commerce. But the benefit of obtaining trademark rights is that you can then, and only then, stop other businesses from using your trademark with respect to your goods or services.
While it is a good idea to obtain state registrations for company names and DBAs, remember your best protection will come from a federal registration with the USPTO. If you need a registration, consider Mighty Marks®, a flat rate online tool to file your trademark application.
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*This article is very general in nature and does not constitute legal advice. Readers with legal questions should consult with an attorney prior to making any legal decisions.
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