Your business name carries a lot of weight; it’s an important part of your brand’s identity and it helps distinguish you from your competition. That makes it an asset well worth protecting, don’t you think? After working so hard to start and build your business, you certainly don’t need another company hijacking it or using a name that’s deceptively similar.
You can protect your business name in three ways:
- Filing a DBA (“Doing Business As”)
- Registering your business name by forming a legal business entity
- Registering a federal trademark
Before deciding which of these are right for you, you should know about their differences.
Filing A DBA
If you have a sole proprietorship, a DBA (also called “fictitious business name”) allows you to use a business name without creating a formal entity (such as an LLC or corporation). Having filed a DBA helps protect your business name from misuse by other businesses within your state. Most states require a DBA if you want to use a name other than one that includes your proper name. For example, Jane Smith would need a DBA if she wants to use the business name, “Jane’s Accounting Services” instead “Jane Smith’s Accounting Services.”
Before you file a DBA, check your local and state business name databases to make sure no one else is already operating a business under that name (or one that is very similar).
Registering Your Business Name By Forming A Business Entity
When you file to operate your business as either an LLC or a corporation, you gain protection of your business name in the state you registered after the state has approved your application. No other company in that state will have the right to register their business under that name within the state. Every state has its own level of tolerance for how similar it will allow names to be. For example, one state may give approval if someone registering the name “Jane’s Hair & Nail Salon, LLC” when someone else already uses the name “Jayne’s Hair & Nail Salon, LLC.” But another state might reject the filing because they deem it too alike not to confuse customers.
While protection at the state level is helpful, I caution you about some limitations. Even though other business can’t form a corporation or LLC using your name, sole proprietorships and partnerships in that state can still use your name. And registering your name with the state doesn’t mean a business in another state can’t use the name or even form an LLC or incorporate using your name in states other than where your business is registered.
Before registering your business, I highly recommend doing a name search to make sure another company in your state isn’t already using your desired business name.
If you’re worried that a partnership or sole proprietorship might use your name or if you have your sights set on operating your business in multiple states or selling your products and services nationally, I suggest you consider protecting your name with a federal trademark.
Registering A Federal Trademark
A trademark identifies the source of products or services. It can be a word, phrase, design, or symbol (or a combination of any of them) that distinguishes a business from its competitors. The United States Patent and Trademark Office (USPTO) grants trademarks on distinctive names, logos, and slogans. When you own a trademark, you have exclusive rights to the mark, which prevents anyone else from using it in any state anywhere in the United States. Provided you comply with the requirement to renew your trademark every 10 years, your trademark will have an unlimited lifespan.
Preventing confusion in the marketplace is the primary purpose of trademarks, and trademark protection applies to only a particular category of goods and services. So, for example, if you own a trademark for your dog grooming business’s name “Top Dog,” a company operating a food truck that sells gourmet hot dogs might be able to form a company using the same name. It would be unlikely for consumers to confuse your company with the food truck vendor, despite your using the same name.
While you’re waiting for official word from the USPTO that your trademark is granted, you might consider identifying your business name is yours by using TM (or SM for “service mark”) after it.
This will indicate to other businesses that you’re stating ownership of the wording, symbol or design. Note that using TM or SM doesn’t equate to legally owning your mark, and that could make it difficult to bring legal action against another party that uses your name or a name that’s similar. Only after the USPTO approves your application may you use the official federal registration symbol “®” after your mark.
Before you apply, I recommend doing a trademark search to make sure no one else has a pending application with the USPTO for your proposed trademark. You can do a free basic search in a matter of minutes. After that, do a comprehensive name search to see if anyone is using your proposed name in your state or locally. Taking these steps can save you time and money; if the USPTO rejects your application because your business name is already spoken for, you’ll lose the nonrefundable $275 application fee.
Also realize you’ll need to exercise some patience because the trademark registration process may take anywhere from six months to several years. The amount of time will depend on the complexity of the mark and whether the USPTO discovers any issues when reviewing your application.
Your Business Name: Too Important Not To Protect It
Will your business have enough protection (and you enough peace of mind) by registering your name with the state or should you secure a trademark? Before you make the call, I encourage you to talk with a legal expert who can guide you through deciding which option is best for your business. And when you do reach a decision, you will want to file all your paperwork accurately to avoid delays and extra cost. An attorney can help you through the process or, if you want to do it more cost-effectively, you can have a reputable online business filing service handle it for you.
