Trademark Basics- What’s in a name?

A trademark is a legal tool many businesses do not take full advantage. A trademark identifies a good or service as being from a particular source. A business’s name is very important because it is part of a company’s image and public perception. When customers buy a product or service from a specific company, there is an expectation that the product or service meets the company’s standards. A business should consider filing a trademark or servicemark (a trademark protects goods; servicemark protects services) with the United States Patent and Trademark Office (USPTO) because it offers several protections. First, it keeps competing companies from using a business’s name in order to confuse customers and steal away new business. Secondly, it protects the company’s name and image from competing companies which may offer inferior products or services and thereby hurt the business’s image.

What most people do not know about a trademark is that the United States legal system offers what is called “common law” protections for a company’s name. That means that a company does NOT need to have a registered trademark in order to have some rights  and protections. Unlike a registered domain name, a trademark is not granted merely on a first come, first served basis. In fact, in order to register a trademark with the USPTO, you must show that you have used or intend to immediately use the name in commerce. Additionally, once a trademark is granted, it does not divest the rights of another company which was using that particular name previous to the trademark registration.

For example, if I wanted to register the name of my firm, The Law Office of Catherine Cole, P.A., located in West Palm Beach, Florida, but there was another The Law Office of Catherine Cole, P.A. in Denver, Colorado, I could still do so. I could file my registration with the USPTO, and assuming the application was accepted, obtain a trademark registration. However, the registration of my Florida firm’s name would not prohibit the Colorado one from continuing to operate under the same name in Colorado. The registration would prohibit any subsequent companies from trying to open under the name The Law Office of Catherine Cole, P.A. but the registration does not divest the rights of existing businesses.

If you have any questions regarding your business rights and protections, please contact a qualified attorney.

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