Branding Your Business: Trademarks vs. Trade Names

Branding Your Business: Trademarks vs. Trade Names

While the terms “trademark” and “trade name” may sound similar, both have different meanings when it comes to your brand.

Trademarks

A trademark refers to a logo, symbol, or slogan that distinguishes your business. Trademarks help consumers to recognize your product, while service marks identify the service you offer. Both marks differentiate your brand from that of your competitors. A trademark/service mark encompasses everything from a well-designed graphic to recognizable colors.

For that reason, most businesses register trademarks to protect their brand and claim the phrase, logo, or name as part of their individuality. It grants you exclusive use to that mark, and ensures that it is legally protected from infringement.

Some examples of registered trademarks include:

  • Nike’s Phrase: “Just Do It” and their swoosh check mark logo
  • The name Ford, as well as their slogan “Built Ford Tough”
  • The name McDonalds and slogan “I’m lovin’ it”
  • The name Google

Some trademarked terms have become so mainstream that they are now used generically by consumers for everyday items, including:

  • “Kleenex” (Facial Tissue), trademarked by Kimberly Clark
  • “Frisbee” (Flying Disk), trademarked by Wham-O
  • “Band-Aid” (Bandage), trademarked by Johnson & Johnson
  • “Post-it” (Sticky Note), trademarked by 3M
  • “Q-tips” (Cotton Swabs), trademarked by Unilever
  • “Jacuzzi” (Hot Tub), trademarked by Jacuzzi
  • “Sharpie” (Permanent Marker), trademarked by Sanford L.P. (Newell Rubbermaid)

How to register a trademark

Before registering a trademark, you should make sure your product or service is eligible and it has been used or you intend to use it in commerce. This means that your mark will be displayed on your products or in conjunction with your services. It cannot be registered solely to reserve the rights for future use, which is a common misconception about trademark filing. It must be applicable to your specific product or service before you can file for registration.

Next, conduct a trademark search of your desired logo or catchphrase using the Trademark Electronic Search System (TESS) to see if the proposed slogan, spelling, or design is unique and is not already trademarked. It should not easily be confused with another company’s logo, name, or phrase.

Tips for getting your trademark approved:

  • Conduct a comprehensive trademark search using TESS.
  • Avoid a logo or phrase that is confusingly similar to another brand.
  • Avoid words that are merely descriptive of your product or service, such as Fun Travel Agency or Sweet Sugar Cookies.
  • Avoid a name that indicates your geographic location, or gives consumers the impression that your product or service is primarily geographic, such as Alabama Chicken. Additionally, if you falsely attribute a region in your name when your product is not made or sold there, this is also grounds for trademark rejection.
  • Avoid using only a surname. Many businesses believe that their surname alone is sufficient for trademarking, but it may be rejected on this basis alone, or because it has already been used (ie. McDonalds).
  • Avoid a generic or vague logo design that offers no authenticity, such as a needle and thread for tailoring services.

Once you have conducted a thorough trademark search, you can then apply for registration at a state or federal level through the United States Patent and Trademark Office under the Trademark Electronic Application System (TEAS). Your application then goes through a series of reviews, including whether it has met the minimum filing requirements, as well as a complete review, search, and examination by an attorney over a period of time. From there, they will determine if it is refused or accepted.

If your trademark is accepted, you will receive a certificate of registration. The United States Patent and Trademark Office outlines the full application process here.

Note that there is a fee for registering a trademark, and it usually runs around $300+. You can also consult with an intellectual property lawyer to help you through the process.

A ™ symbol after your business name signals an unregistered trademark. Once it has been registered, the ™ can be replaced with a ®.

Trade Names

A trade name is the name under which you conduct business. It serves an administrative function for banking, tax returns, or business formation and is generally considered your assumed name when you register your business with the government.

Trade names are used for advertising and do not have as strict guidelines when it comes to registering them. As long as the name does not directly misrepresent your company (ie. an accounting firm calling themselves a legal firm), or it does not infringe on another entity’s trademark, it will likely not be rejected.

The government does not treat trade names as trademarks, which means that while you can operate under your trade name, you also won’t have the legal protection of a trademark.

Additionally, you cannot use your trade name to “function” as a trade mark by differentiating yourself, your products, or your services in a way that causes confusion with a previously registered trademark.

Doing so may infringe upon trademark laws. However, you can market yourself with a trade name, and even look into registering a trade name as a trademark, much like the Eastman Kodak Company did with their trade name (now trademark), Kodak®.

How to register a trade name

According to the Small Business Administration, if you choose to register your business as anything other than your personal name, partnership name, or registered business name, than you will need to apply for a Doing Business As (DBA) name or fictitious name with the appropriate government body (county clerk office or state officials) to alert the government you are calling yourself by a different business name than your current personal one.

For instance, if you run a sole proprietorship under the name Jim Smart, and wish to change it to Jim Smart Consulting, then you need to file for a DBA. Once you have a DBA name, you can still use your personal name on tax returns and invoices if you choose.

Note that some states do not require you to register a fictitious or DBA name.

If you are considering changing your trade name to a DBA name, you may have to notify other government entities, such as the IRS, Secretary of State, as well as revise previous contracts (leases, service agreements etc.), licenses, and permits when you do so.

Name Wisely

When attempting to name your business or register a trademark, make sure you have done your homework and looked carefully to see if your name, logo, or phrase is eligible and unique enough to pass trademark registration.

If so, having trademark protection and exclusive rights is valuable to protect one of your biggest assets—your brand.

Your business name and branding will be the first point of contact for most of your consumers and business partners, so make sure to take your time choosing the right name, and protecting it once you have.

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Kristy DeSmit

Marketing Specialist at LawDepot
Kristy is an avid blogger, Twitter enthusiast, and company legalese interpreter.
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