Naming and Protecting Your Business

tm copyThe process of naming your business is a complex one. Not only must it reflect your brand but you need to find ways to protect it against name hijackers, scammers, impersonators, cybersquatting and business identity theft.

There are several ways to protect your business name—locally, nationally and in global markets. Here is what you need to know.

Understand that business naming has many layers

So you have chosen a name for your business. What’s next? Well, first you need to understand the many forms that a business name can take. Let’s take a look:

  • Business legal name: This is the name of the person or entity that owns the business. It is the name you use on your bank account, tax returns and other government forms.

If you are a sole proprietor, then the legal name of your business is your given name, for example “Mary Smith” (you do have the option to change this—more on this below).

If you are in a business partnership, then the legal name is the name you have chosen to give that partnership in your operating agreement.

If you have not chosen a name, then it will defer to the last names of the business owners.

  • Trade names or “DBA” names: If you choose to operate your business under a name that is anything other than your given name (i.e. something fictitious), then you need to register that name with your local government as a trade name or “doing business as” (DBA) name. This applies to sole proprietors, partnerships and LLCs.

Note: Not all states require the registering of fictitious business names or DBA’s. A business formed outside of New Jersey must use the exact name that is on the formation document in its home state. If that name is already being used by another business entity in this state, the foreign business will need to establish a secondary or ‘doing business as” name for New Jersey purposes. Only foreign (non-New Jersey) businesses may use a “dba” name. When a “dba” is designated, online registration is not available.

Another very important point to know is that trade names do not afford your business name any protection. For that you need to trademark it.

  • Business trademarks: Different than a trade name, a trademark protects your business name by providing government protection from any liability or infringement issues. Before you even think about naming your business you should conduct a trademark search with the U.S. Patent and Trademark Office (USPTO) to ensure you are not violating any existing trademarked names.

For information on filing for a trademark, check out SBA’s Intellectual Property guide at www.sba.gov.

  • Domain names: Your domain name establishes your presence on the internet. You can register your domain name through your web hosting provider or through ICANN registration authorities.

Once secured it cannot be used by another party for the term that you have registered it.

What is the best way to protect your business name in the United States?

Trade names registered with your local government afford a limited amount of protection. Basically, no one in your state can use it if you have already claimed it. However, a trade name does not provide any protection outside your state’s jurisdiction.

To ensure your name cannot be claimed nationwide (and to add an additional layer of protection) you should trademark it. For this, you have two options: state trademarks or federal trademarks.

State trademarks are quicker and cheaper to obtain than a federal trademark. They are particularly useful if your state does not require you to register a trade name. However, state trademarks are only protected within the borders of the state they are registered in.

If you are launching a national business or operating in several states, then you will want to register your business name with the USPTO.

 What about overseas?

If you are doing business outside of the US, you have several options:

  1. Consider filing with the foreign country where your business activity exists. Most countries give trademark protection to the first business that registers the trademark, unlike the common law in the United States which gives legal rights to the first business that uses the trademark.
  2. Seek international trademark protection under the Madrid Protocol. Although there is no universal trademark protection mechanism, if you have a U.S. trademark or are pending one, you can seek registration in any of the 96 countries that have joined the Madrid Protocol. This involves a single “international application” with the International Bureau of World Property Intellectual Organization (WIPO).
  3. Apply for trademark protection in Europe. If you have business interests in Europe, you may apply for trademark protection in the European Union via the Community Trademark System.

Finally, although there is no truly global trademark body, members of The World Trade Organization must comply with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

TRIPS is the first multilateral intellectual property agreement that is enforceable between governments. The agreement has a strong dispute settlement mechanism to resolve disputes.

Note: If you are planning to significantly expand your business on a global platform, make sure that your trademarked trade name has not been registered by another business. Also, remember to first file with the USPTO before you file internationally.

Next steps

Once you register your business name, do not stop there! Actively protect it by keeping detailed records of documents and marketing materials that includes your business name and by looking out for intellectual property infringement.

Using trademark insignias like TM, SM and ® will also alert other businesses that you have claimed legal rights to your business name.

Related Resources

Caron Beesley is a small business owner, a writer and marketing communications consultant. Caron has worked with organizations including the Small Business Administration (SBA.gov) and private companies to promote essential resources that help entrepreneurs and small business owners start-up, grow and succeed. Follow Caron on Twitter: @caronbeesley.

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Meadowlands Magazine

Meadowlands Magazine

Meadowlands Magazine, the official publication of the Meadowlands Chamber and its affiliate organizations, has proudly served the business community of the Meadowlands region for over 40 years. We are among largest business magazine in New Jersey (second by circulation) and offer prime visibility opportunities for businesses to connect with potential customers. Joe Garavente is the director of publications and communications for Meadowlands Media and the Meadowlands Chamber. He oversees editorial, advertising, distribution and production.

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