This question is asked in the context of intellectual property. Many misconceptions, misunderstandings and myths exist about “names” within IP. This can lead to confusion, with clients believing that they have rights when in fact those rights are eroded, or in some cases, never existed. This question provides an opportunity for a discussion to clarify the differences in “names” within the IP realm.
Trademarks and Trade Names of Companies, Corporate/Company names, aliases & trade names
Often, these categories are used as synonyms. These are NOT synonyms! Each category has its own IP protection and rights. To enjoy the protection provided by each category, it is necessary to understand what each one means. A name can fall under one or more of these categories. It depends on the way a name is used. It is common to register with a government agency. Registration is often done to bring order. A free market is by definition orderless. This means that buyers and sellers can freely interact. They still have to know who they are dealing with and what they are doing. A free market can become chaotic if sabers are drawn. So, listen closely.
Company/Corporate Name
The name of a business is simply the legal name for that entity. Although it is a name, it is not a trademark. You can obtain it by forming a company, LLC or corporation with the help of a state agency, usually the secretary’s office. As there is not a federal agency which creates companies or corporations, the federal name cannot be registered for this purpose. The creation of a company or corporation does not imply any rights over a trademark (trademark), nor any other IP. The mere creation of a corporation or company does not violate any IP rights.
Aliases
A trade name is also known as an alias. When registered, it is called “doing businesses as”, “also known” or “assumed names” (Minnesota). A trade name is not federally registered. Again, this is a matter that needs to be registered with a state agency. As an example, the business may be called “Johnson, LLC” but it operates under the name “Sunrise Electronics”. The trade name will appear on all signs and advertisements. A public record is kept of the business that operates under an assumed name.
Common law trademark rights are acquired when a trade name is used for the sale of goods or services. Common law trademark rights are acquired by using the trade name, not just when it is registered.
Trademarks
The trademark (brand) is obtained by use, not registration. When we say “use”, we mean that the trademark is being used to sell products or services. The registration of a trademark does not give you any additional rights. It is important to keep this in mind.
There are two types of registration: state and federal. The state registration in Minnesota provides only a presumption that ownership can be rebutted. In other states, registration confers a similar rights. The federal registration grants the exclusive right to use a trademark throughout the United States, including its territories. After five years, the federal registration gives the owner an uncontested right to use the trademark offensively and defensively. The owner is able to assert their trademark in an offensive manner against an infringer. This exclusive right cannot be taken from them unless they obtained the registration through fraud, the mark becomes generic, or the mark has been abandoned.
It’s not romantic to think about what is in a name, but it’s important.
What’s In A Name? The post Intellectual Property: What’s the Difference Between Names? appeared first on Attorney at Law Magazine.