Friday, December 17, 2010

Trade Name vs Trade Mark

Is a trade name the same as a trade mark? What is the difference between the two terms? Should I trademark my business name? These are the commonly asked questions that today’s post aims to answer.

Trade name is the official legal name of your business entity. This name appears on the incorporation papers and you can find it if you search the Department of State business registry. You use this name to open bank accounts, obtain business credit cards, and this name is the one you use to pursue or defend a claim in courts. Trademark, on the other hand, is any word, design, slogan, sound or symbol that serves to identify the source of goods or services (service mark).

Not every trade name (or business name) may be trademarked. You should trademark your trade name only if you use it in commerce to advertise, promote or identify the source of goods or services your company produces. For example, Google is both a trade name (there is a Delaware corporation called “Google”) and a trademark (because Google puts its name on its products and services to identify the source). On the other hand, TJ Maxx is a trademark for retail department store services, but is not a trade name. The actual name of the company is TJX Operating Companies, Inc., which is a trade name that consumers would not typically identify with what TJ Maxx does.

Just having the name registered with the New York Department of State as a name of your business does not afford you protection against someone using the same name as a trademark. For example, person A started marketing his handbags under the name “Handy Bandy” in New York in 2000 without forming a legal entity. Person B could form a legal entity “Handy Bandy” and register it with the New York State in 2004. This is possible because in the NY Department of State registry the name is still available. However, person B would not be able to use this name as a trademark to identify the source of handbags because person A already uses this name for this purpose and has a common law trademark. The reverse may also be true. If person A registered his business in New York State under the name “Handy Bandy” in 2000, there may be an argument made that if person A does not use this name as a trademark, then the name may be available to person B wishing to use it as a trademark to advertise and sell handbags. This would be a difficult but not an impossible argument to make.

In conclusion, business owners may want to consider whether they use their trade names as trademarks, and if they do, to register them with the U.S. Patent and Trademark Office.

This article is not a legal advice, and was written for general informational purposes only.  If you have questions or comments about the article or are interested in learning more about this topic, feel free to contact its author, Arina Shulga.  Ms. Shulga is the founder of Shulga Law Firm, P.C., a New York-based boutique law firm specializing in advising individual and corporate clients on aspects of business, corporate, securities, and intellectual property law.


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