Are you starting a new business? A common misconception when it comes to the business name is that by registering with the Secretary of State, you have also secured trademark rights in that name.
One way to look at this all is by thinking of the entity registration at the state level as the “who” and the trademark registration as the “what.” For legal purposes, an entity is considered a “person” and can enter contracts. As a person, you have things like your name, birth date, and social security number to identify you. Your business registration acts in a similar way. It tells someone who your entity is and where it’s from. A trademark registration, on the other hand, is property you own. Like most property, you have certain rights when it comes to who owns the property, who can use it, and how much money you want if you ever sell it.
REGISTERING BUSINESS NAME WITH SECRETARY OF STATE
To create a corporation, LLC, or any other entity, you must submit an application with the Secretary of State. The state will take a look at the name of your entity and compare it to names of other companies in that state alone. Even though states have differing laws as to how different the name must be, small differences between company names may be enough to allow the registration. Once your company name is approved, nobody will be able to register an identical name with that specific state.
It’s important to remember that this business name registration will only protect you in the state which you have applied in. In other words, registering your company name in Illinois won’t allow you to stop someone from registering the same exact name in Indiana, or any other state for that matter.
FILING A FEDERAL TRADEMARK APPLICATION
A trademark is a word, phrase, symbol, design, or a combination of any of those elements, which identifies the source of a product or service. Unique names, logos, slogans, sounds, packaging can all be granted a trademark registration by the United States Patent and Trademark Office (“USPTO”) if they act as source identifiers.
If you happen to use the name of your business that you registered with the state as your “brand,” then you are using it as your trademark and can apply for protection. If you are granted a trademark by the USPTO, you may be able to stop others from using the same or similar names for goods and/or services that are like yours. The best part about a trademark registration is that it is granted at the federal level. That means that even though you are located in one state, Illinois for example, you may be able to stop someone from using the same name in a different state, even if it is across the country.
Once you file a trademark application, it will be reviewed by the USPTO. If there are identical or similar marks that are already registered or pending, the USPTO may issue an Office Action rejecting your application based off of those registrations. Before pursuing trademark registration, it is a good idea to perform a search to see what else has been registered or applied for. It’ll give you a better idea of whether or not to pursue a trademark. It may also save you a significant amount of money in rebranding if you discover identical registrations early on and the best course of action is to change your mark.
