The Name Drain

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Cheryl Tubach

September 3, 2008

Small business owners have so many issues to address before they can begin generating revenue. In addition to having business plans, finances arranged, and products or services ready for market, small business owners must choose a name for their company so they can file for a business license with their local government. As long as no other party has the same name, the local government branch issues the business license. With business license in hand, the small business owner is ready to invest in print and generate income.

Are there any hidden issues not being addressed? Perhaps, especially if your company name (commonly referred to as your trade name) is also being used to identify the goods or services being sold. 

If you start a business and use your name to identify your goods and/or services, you could receive an unexpected call or letter (or even worse, served with a lawsuit) from a third party demanding you to stop using such name on your goods and/or services. A third party may already have rights to the name for similar goods and/or services either through federal or state registered trademark rights or under common law trademark rights. This is more likely to happen if you have not taken the precautionary steps to research the availability of using your name relative to third-party rights and protecting your name if available.

Even though trademark rights begin upon use in commerce, and there is no law requiring someone to obtain federal or state trademark registrations of their name for use on goods or services, investigating the option of whether to file for a federal or state trademark registration is time and money well spent. This investigation provides information regarding whether others are already using a similar mark creating substantial risks to you.

After coming up with name options, the first step is to have a thorough trademark search conducted and analyzed by a competent attorney. With the results in and risks understood, the next step is to register your name as a trademark for the particular goods and/or services, thus preserving your rights for the future before others who may want to use a similar name for similar goods and/or services.

While there are do-it-yourself websites for trademark registration, you may not understand the nuances associated with this complex area of law, and may later find that spending a small amount upfront with a competent attorney will save you time, money and worry.

Cheryl J. Tubach, Esq. is the director of Corporate IP Affairs at Myers & Kaplan Intellectual Property Law, L.L.C. With 15 years of legal experience, she helps clients with all aspects of intellectual property law and related transactional matters.

Legal Disclaimer:  The attorneys of Myers & Kaplan Intellectual Property Law, LLC make Catalyst Magazine available to you only for the educational purpose of imparting general information regarding the law. Catalyst Magazine does not offer specific or general legal advice. Your use of Catalyst Magazine's Expert Blog does not create an attorney-client relationship between you and Myers & Kaplan, Intellectual Property Law, LLC or any of its attorneys or agents. Catalyst Magazine or its parent company, Atlanta Business Media, a division of TransWorld Publishing, neither constitutes, nor should it be used as, a substitute for specific or general legal advice.

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