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You’ve picked the perfect name for your new business; you even secured a reasonable domain name. And now you are ready to order business cards and start selling.

But have you thought about protecting your new name? If not, you should. And in this week’s post we will explain why.

Avoid Future Conflicts

The first reason is actually a bit reversed. You should go through the process of applying for a federal trademark so you can try to find prior users of the mark you want to use. A normal application process includes a search of the USPTO database and also a common law trademark search.

All too often new businesses fail to perform these searches and later learn of a prior user. Unfortunately, they often learn about that prior user through the receipt of a cease and desist letter. And when you receive such a letter, you will (at least in many cases) have to adopt a new brand at a great cost.

Stop Infringers

We have explained in the past that you don’t technically need a registration to claim trademark rights in a mark. However, if someone infringes your common law trademark rights, your cease and desist letter is a little less convincing and many infringers will ignore the demand.

The benefit of a registration is that you get a certificate from the USPTO that provides a legal presumption that you are the rightful owner of the mark. Once you have such a certificate, you can enclose a copy with your cease and desist letter to get infringers to end their infringement even faster!

National Protection

One of the biggest reasons to seek a federal trademark is national protection of your mark. When you rely on common law protection you can only claim rights in the geographic are in which you actually use the mark (plus a reasonable expansion area).

However, by obtaining a federal registration, you can stop new businesses from using your mark anywhere in the country. That is obviously a big benefit and with more and more businesses being transacted digitally all over the country, that benefit will come in handy.

Access to Federal Courts & Higher Damages

Lastly, without a federal trademark registration, you cannot file a lawsuit in federal court. If you wait until you find an infringer to file your application, waiting on the application will simply slow down your lawsuit and cause delays. And if you wait too long, the long-term damage of not being able to stop an infringer can be devastating.

Additionally, having a federal registration will give you power to seek larger damages and possibly even attorneys fees against an infringer.

How to Do It

Luckily, obtaining a federal registration doesn’t have to break the bank or be too complicated. You just have to find the right help. That’s where Mighty Marks® comes in. If you want help protecting your new business name, contact Mighty Marks® today!


Image: Thinkstock/Robert Churchill

*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.

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.

Image: Thinkstock/-1001-

*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.