You've invested serious time and effort coming up with a unique name for your business, and you want to be sure you've done everything you can to protect it. But are there legal steps you can take to do that?
Absolutely. If yours is the first business to use the name, you can protect it so that no one else can use it without your prior permission. And the proper way to protect a business name from use by others is to register it as a trade name.
A trade name is one of several intangibles you have that the law refers to as "intellectual property." Simply put, intellectual property is something that's created by the human mind such as an idea, an invention, a unique name, and artistic and literary expressions. Intellectual property law is the system of federal and state laws enacted to allow the creator of some form of intellectual property to protect and limit its use so that the creator can maximize the financial gain from the property.
There are various types of intellectual property, each with its own legal method for protecting it:
- Patent law concerns the protection of mental creations such as inventions. Patentable creations included zippers, drugs, Velcro, even the various Ronco devices sold on late night infomercials.
- Copyright law gives protection to the creations of authors, composers, artists and computer programmers, among others, and covers books, music, speeches, magazines, newspapers, films, plays, songs, art, software, websites, and more.
- Trade secret law protects confidential business information such as recipes, manufacturing processes, magic tricks, and medical and perfume formulations.
- Trademark law protects brand names, designs, logos, sounds and so forth that are associated with certain products or services. For instance, the name "Xerox" refers to a brand of photocopiers, the name "Blockbuster" is a trade name for a video rental service, and the design of an apple used by the Apple computer brand is a logo, all of which are protected by trademark law.
Trademark law may also protect names under which a company or person does business. Proctor & Gamble is a trade name associated with a particular business, and "Ivory" is a trademark of Proctor & Gamble since it's a brand name associated with a certain type of soap manufactured and sold by that company. Chevrolet is both a trade name that refers to the motor company as well as a trademark that refers to an automobile brand.
Generally, the steps you'll need to take to trademark your business name include the following:
- Do a trade name search on the U.S. Patent and Trademark Office website to make sure it's not too similar to an existing trade name.
- Complete and file (in paper or online) with the U.S. Patent and Trademark Office either an "Intent to Use Application" or an "Application for Mark in Use," depending on whether you've begun using the trade name yet.
- Use the trade name in commerce as required.
- Await action by the Patent and Trademark Office. They'll contact you and advise you whether a patent or trademark already exists and whether your application was correctly filed.
- Upon acceptance of your application, your trade name will be published in the Official Gazette of the Patent and Trademark Office, publicizing the fact that you've been granted a trademark.
- Protect your trade name by timely renewals of your trademark for that name, consistently use the designations "TM" or "R" immediately following each use of your trade name to give notice of your registration, and stop infringers from using your name by sending the abuser a cease-and-desist letter and filing suit, if necessary.
Putting your name on a store sign or on employees' T-shirts isn't enough to protect your trade name from use by others. If your business name is unique and hasn't been used or registered by someone else, it may qualify for protection under the trademark laws of the United States as well as the trademark laws of your particular state. If you haven't taken any steps to protect your name, now's the time to get started.
Jeffrey Steinberger is a veteran trial attorney and the founder and senior partner of The Law Offices of Jeffrey W. Steinberger , a Professional Corporation in Beverly Hills, California. He is also a renowned celebrity attorney, TV legal commentator and analyst, federally appointed SEC arbitrator and professor of law.