FAQ 4. Must I trademark my business name? And if so, how?

  • Should the business’ name or the product’s or service’s name be protected?  Generally speaking, it is the product’s name that is protected by a common law or registered trademark or service mark, as the case may be, and not that of the business.  That is because owning the intellectual property to a trademark or service mark has a list of requirements related to products or services in trade and the uniqueness of the way consumers identify your product or service versus that of a competitor.  The protections gained prevent others from naming their product or service in a way that may confuse consumers seeking your product or service instead.
  • Is the product being sold across state lines?  This question will determine which government entity is empowered to register your product’s trademark and what protections may be granted to you as the owner of the mark. To qualify for registration with the USPTO and get legal right to use the registered mark symbol , the mark must be used in interstate commerce (among many other requirements).
  • Are there any other products being sold using the same or a similar name anywhere in the same industry?  Without a trademark/service mark search, it may be you that is unwittingly infringing upon someone else’s mark when you name your product.  If that is the case, that mark owner has the right to prevent you from using your product’s name.  Failure to properly plan before marketing a new product name can result, therefore, in expensive corrections if a competitor is already using the trademark–even if their use seems like it is in a completely different geographical market from the one in which you intend to operate.
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