Trade names and trademarks are commonly confused by small businesses and young entrepreneurs. The confusion usually occurs because many businesses use the name of the company, at least in part, as a trademark. Reserving a company name or registering a business entity with the Secretary of State or Division of Corporations does not provide trademark rights in the registered company name. Registering a business with the Secretary of State does not provide you with a trademark registration. Assuming trademark protection from registering a business name with the state can be a costly mistake. To avoid this mistake, it is helpful to understand the difference between trademarks and trade names.
Trade names are just the name of the business entity. Companies may have more than one trade name. The name of the company provided to the state in the organizational documents is one type of trade name. A second type of trade name is the d.b.a. (“doing business as”) name which some companies use for different business divisions of the company. In each case, these are merely names for identifying a business and generally used by the company for billing, taxes, banking, or other identification purposes.
Trademarks, on the other hand, are marks used in connection with goods or services in a manner that consumers recognize the marks as identifying a source of goods or services. For trademark rights associated with goods, a mark must be affixed to the goods or product packaging so that that consumers would associate the goods with the mark. Sending out letters with company letterhead does not generally work for this purpose. The same is generally true for service marks. The mark must be conspicuously used in the advertising for the services.
Similarities and Differences Between Trade Names and Trademarks
You may readily recognize some similarities between trade names and trademarks. These similarities are often at the root of the confusion that leaves businesses unprotected. The confusion sometimes arises because, in some instances, trade names are used as trademarks – for example, Coca-Cola and McDonalds. However, even if you are using your company’s trade name as a trademark, mere registration of the business with the Secretary of State of Division of Corporations will not provide you trademark registration rights like you will get if you obtain a United States trademark registration.
A federal trademark registration application goes through an examination process to help determine if there are conflicting trademark registrations or to determine if the mark is merely “descriptive” of the goods or services. The examination process can provide valuable information from the United States Patent and Trademark Office regarding potential weaknesses with your mark. More importantly, though, once you obtain a U.S. trademark registration, you also obtain additional rights and legal presumptions that strengthen your trademark rights and increase your ability to protect them.
If you want trademark protection for your trade name, seek the advice of competent trademark counsel who can assist you in obtaining a trademark registration and advise you how to properly use your company name in a way that gives rise to trademark rights.