You’ve Chosen a Business Name …Now What?


Protect the Rights to Your Business Name

Congratulations on starting your business!

If you are joining us here at Solopreneur School, chances are you have, or are about to, choose a name for your new business. Welcome to my corner – protecting the brand (also known as the intellectual property) of your business. I am a trademark attorney and specialize in this type of work for my clients.

I am often told by people I meet that because they have incorporated with the Secretary of State and purchased a domain name, they are “all set” as far as their business name That couldn’t be further from the truth. For that reason, I chose the topic of corporate names (also known as trade names) versus trademarks for my first post.

Let’s start with corporate names. A corporate name is the name of the actual business entity – the name that gets registered with the Secretary of State at the time of incorporation. This is the company’s “official” name. Incorporating with a Secretary of State gives the company the right to use its name for official purposes, such as banking, on legal documents, and as a tax payer.

A trademark, on the other hand, is a particular word, phrase (sometimes a tag line or slogan), symbol, logo (we call it a design mark in the legal world), that is the name shown to the public. This is the public-facing name the company uses in the stream of commerce to identify its goods or services.

Trademark registrations are applied for through the United States Patent and Trademark Office (for federal registration), state offices (for state registration), or internationally. Choosing between a federal and state registration is one of the many decisions with which a trademark attorney can help.

An easy illustration of the difference between corporate names and trademarks is TJ Maxx. TJ Maxx is a trademark for retail department store services, but that is not the company's corporate name. The corporate name is TJX Operating Companies, Inc., which most of us do not recognize.

A common misconception is that when a Secretary of State allows a company to incorporate with a particular name, the company thereby has permission to use that corporate name as a trademark.

The truth is that when incorporation is allowed with a certain name, this does not necessarily mean use of that corporate name does not infringe someone else’s trademark.

Following the example above, let’s say you or your client wanted to incorporate the name TJ Maximum, Inc. A secretary of state is likely to allow that. However, if you or your client began using that name in connection with retail clothing, the owner of the TJ Maxx trademark would likely have a strong trademark infringement claim.

The fact that a Secretary of State allowed incorporation with the name TJ Maximum, Inc. is not a defense to trademark infringement.

The bottom line is that corporate names and trademarks are two different things and shouldn’t be confused. Even if you have registered with the Secretary of State, you have one more step – registration with the U.S. Patent and Trademark Office – to complete in order to fully protect your brand.

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Sonia Lakhany is an intellectual property attorney at Lakhany Law, PC. She specializes in trademark and copyright law, teaches and is a frequent speaker and blogger. Sonia is also active on several boards and committees in the Atlanta legal community.

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