What’s In a Business Name? Should You Protect Your Brand Identity?

• Legal Names. A business’s legal name is the name of the person or entity that owns the business.  It is the name you use to file government forms and applications. For sole proprietors, this means that your business’s legal name is your personal legal name, as in “Mary Smith.”  Other business structures use the name documented in a partnership agreement, the combined last names of partners, or the name that is registered with your state government as their legal name.  Regardless of the type of business you have, you only file the legal name of your business with your state as described below.
• Trade Names. A trade name, also known as a fictitious name or a DBA (doing business as) name, is the name under which business is conducted. Think of it as the nickname for your business – not a legal identity, but the name that everyone recognizes the business as.  For example, Mary Smith owns a business called Seaside Catering, but files her business under Mary Smith. “Mary Smith” is the legal name while “Seaside Catering” is the trade name. You file your business’s trade name with your county or your state, depending on the state your business is located in. However, you can obtain further protection on a national and international level, which is discussed below.
• Domain Names.   A domain name is the web address of an online business.  Establishing a domain name allows you to conduct business on the web. Depending on how much protection you want your domain name to have, you can have obtain state, national, and international protection.
• Trademark.  To protect a business names, many owners file for a trademark- a word, name, symbol, sound, or color used to represent and distinguish a company’s products or services in the marketplace. Don’t confuse a “trade name” with a “trademark” – the two are not the interchangeable. However, a trade name can be trademarked if the name represents and distinguishes a business product or service.

If you want to register your trade name as a trademark, make sure that the trademark is available before your register with the state and federal government or the international organization, depending who you are filing with. Conduct a thorough name search for existing similar or same names in various databases such as the U.S. Patent and Trademark Office, your state filing office, and even a quick search on the Internet.

Protecting Your Business Name
You want to obtain the right amount of protection for your business name. For example, local and state protection is adequate for businesses operating in their immediate vicinity. You may want national and maybe even international protection if you are starting and expanding your business beyond.

Local Protection
According to common law, the business that uses a particular trade name first has legal right to that name. Common law protection does not require specific filings with the government. Therefore, this type of protection may be sufficient if you just plan to do business locally.

State Protection

• Register Your Legal Business Name. To extend the protection that a common-law registration provides, register your legal name with your state. The legal name of your LLC or corporation is already registered with your state government if you have incorporated your business. However, if you own a sole proprietorship or a partnership, contact your secretary of state to register.
• File a DBA or Fictitious Name. If you are doing business under a name that is different from your legal business name, you will need to file a DBA, otherwise known as “doing business as” name or a “fictitious name.” You are using a fictitious name when you advertise your business under another name or your business is widely known by the public under another name. Some states require that you to file with the Secretary of State, others leave it up to their county’s government, while others do not have requirements for DBA filings at all.

Filing a DBA or fictitious name is controlled at the state level. The federal government does not have a nation-wide registry or record of states’ fictitious names. Therefore, DBAs registered at the state provides only state protection. Read more about DBA name registrations in the Business Law Advisor Blog.

• Register for a State Trademark. Filinga state trademark for your business name, trade name or domain name does not require as much time and money as a federal trademark. A state trademark also provides protection in states like Alabama that do not require businesses to file trade names with the state government. If you are planning to do business solely in your state, a state trademark will provide you with the necessary protection. Learn about how to file a trademark with your state here.

National Protection

• Register for a Federal Trademark. If you are doing business across states or plan to launch your business nationally, you will want to trademark your trade name with the federal government. By registering your trade name with the U.S. Patent and Trademark Office, you can protect your trade name against infringement.
• Register Your Domain Name. If you plan to start an online business or build a website for your business, register your domain name at with InterNIC – Public Information Regarding Internet Domain Name Registration Services. Your domain name can also qualify as a registered trademark if it is directly related to the products and services you provide as a business. In that case, you should file for a trademark with your state and the federal government as you would your trade name. International Protection

If you are doing business outside of the US, consider filing with the foreign country where your business activity exists. Most countries give trademark protection to the first business that registers the trademark, unlike the common law in the United States which gives legal rights to the first business that uses the trademark.

If you want universal protection, know that international trade name and trademark protection laws that are recognized in every single country do not exist. However, some countries have signed agreements to protect intellectual property internationally. Therefore, familiarize yourself with the following international systems if you are doing business in many different countries or in a specific global region in order to maximize the protection of your trade name:

• Community Trademark System. The Community Trade Mark (CTM) system allows you to file one application to protect your trademark in all 27 countries of the European Union. Contact the Office for Harmonization in the Internal Market (OHIM) to learn more about the process of obtaining protection.
• The Madrid System. The Madrid System creates a “bundle of national registrations,” instead of one international trademark registration like the CTM System. In other words, it is a simpler one-application method to apply for protection in the 84 countries participating in the Madrid System.
• TRIPS Agreement. The Agreement on Trade-Related Aspects of Intellectual Property Rights(TRIPS) requires that all 153 members of the World Trade Organization (WTO) comply with theminimum standards of intellectual property protection. There is no application process, but the agreement serves as a platform for protecting intellectual property rights in the international arena.