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Tradename v. Trademark



Entrepreneurs tend to believe that once they register their business name as an LLC or DBA or corporation, that they’ve trademarked that name. This is especially the case when businesses use the same name for their business and their brand. Clients are often confused about filing requirements especially if the names are the same. The answer lies in the scope of protection.

When starting a business, the first thing you’ll do is come up with a name for the business. If you’re operating as a sole proprietorship, most states require registering that name with the state as a DBA if it is something other than his/her own name. The logic behind this requirement is so that there is a record of who really owns the business. Eventful Eva may run her event planning business from her home as Big Day Planning. She may even have a website and business cards identifying Big Day Planning as a business. But without an official record or registration, customers and vendors would not know that Big Day Planning is Eventful Eva’s business. Registering Big Day Planning with the state makes the business and the owner associated with the business searchable. Similarly, Eventful Eva may decide to register her business as an LLC with the Secretary of State in her state. DBAs, LLCs, entity names are all trade names that are registered with the state in which they conduct business. Registering a trade name or business name with the state prevents others from registering the same or similar name as a business name in the state. The geographic scope of that protection is within the state that she registers her business. These business name registrations, DBA registrations or trade names are not intended to provide business owners any protection against competitors but simply to notify the public of the true owner and provide the owner authority to do business in a state.

Trademarks, on the other hand, are source identifiers. Trademark registrations don’t grant approval to do business in a state but they grant exclusive rights to the holder of the trademark to use it and prevent competitors from using the same or similar name for the same or similar goods/services. Trademarks are registered with the United States Patent and Trademark Office. Unlike names of businesses, DBAs and LLCs which grant only statewide protection, trademark registrations grant federal or countrywide protection over the trademark. So you can enforce your rights against a competitor’s use of the same or similar name in any state and all over the country. In short, trademarks keep competitors away from your name while business name registrations permit you to operate your business in a state.

Trademark rights are territorial which means that they extend to the country of registration. Each country has its own trademark authority that issues registrations and trademark registration in the foreign country where sales are made is highly recommended. The USPTO is currently facing a huge backlog of trademark applications. The normal processing times for trademarks has gone up by 3-4 months. Mistakes in applications could cause further delays in the registration process. Consult with a trademark attorney to help you with the process.

At Nupur Shah Law, we help with trademark strategy, applications and prosecution. We help with reviewing your work and determining the best possible protection available to you. Call us at 646-820- 1366 or email us at nupur@nupurshahlaw.com.


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