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The Difference Between a Trade Name and a Trademark – And Why You Can’t Overlook Either

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The Difference Between a Trade Name and a Trademark – And Why You Can’t Overlook Either

By Caron_Beesley, Contributor
Published: June 20, 2012 Updated: January 9, 2013

When it comes to starting a business, there’s often some confusion about the process of business name registration. How are trade names and trademarks different? Does a trade name afford any legal branding protection? Can your trade name be the same as your trademark?

Simply put, a trade name is the official name under which a company does business. It is also known as a “doing business as” name, assumed name, or fictitious name. A trade name does not afford any brand name protection or provide you with unlimited rights for the use of that name. However, registering a trade name is an important step for some – but not all – businesses (more on this below).

A trademark is used to protect your brand name and can also be associated with your trade name. A trademark can also protect symbols, logos and slogans. Your name is one of your most valuable business assets, so it’s worth protecting.

An important reason to distinguish between trade names and trademarks is that if a business starts to use its trade name to identify products and services, it could be perceived that the trade name is now functioning as a trademark, which could potentially infringe on existing trademarks.

To learn more about the role trade names and trademarks have in your business and how to apply for each, read on. 

Registering a Trade Name

Naming your business is an important branding exercise. If you choose to name your business as anything other than your own personal name (i.e. a “trade name”), then you’ll need to register it with the appropriate authority as a “doing business as” (DBA) name.

Consider this scenario: John Smith sets up a painting business and chooses to name it “John Smith Painting.” Because “John Smith Paining” is considered a DBA name (or trade name), John will need to register it as a fictitious business name with a government agency.

You need a DBA in the following scenarios:

  • Sole Proprietors or Partnerships – If you wish to start a business under any name other than your real one, you’ll need to register a DBA name so you can do business under the DBA name.
  • Existing Corporations or LLCs – If your business is already incorporated and you want to do business under a different name, you will need to register a DBA.

Note that many sole proprietors maintain a DBA or trade name to give their business a professional image, yet still use their own name on tax forms and invoices.

Depending on where your business is located, you’ll need to register your DBA name through either your county clerk’s office or your state government. Note: Not all states require fictitious business names or DBA registration.  SBA’s Business Name Registration page has more information about the process, plus links to the registration authorities in each state.

Registering Your Trademark 

Choosing to register a trademark is up to you, but your business name and identity is one of its most valuable assets, so it’s worth protecting.

Registering a trademark guarantees exclusive use, establishes legally that your mark is not already being used, and provides government protection from any liability or infringement issues that may arise. Being cautious in the beginning can certainly save you trouble in the long run. You may choose to personally apply for trademark registration or hire an intellectual property lawyer to register for you.

Trademarks can be registered on both federal and state levels. Federal trademarks can be registered through the United States Patent and Trademark Office. Applications can be submitted online, by using the Trademark Electronic Application System (TEAS), or by requesting a hard copy application and mailing in a paper form. Although both methods are acceptable, filing online is a faster and more cost-effective process (less than $300).

Tip: Before you register, you’ll need to follow these steps:

  • Determine whether your product is eligible for a trademark
  • Conduct a trademark search using TESS (Trademark Electronic Search System)

Because it can be tricky to identify potential infringement or clashes, and the penalties for doing so are high, it’s worth talking to a good intellectual property lawyer to ensure you cover all bases.

As with trade names, registering a trademark at the state level varies from state to state. Check out the USPTO's State Trademark Information page for links to your state’s trademark office.

For a step-by-step guide to filing a trademark application, FAQs and more, refer to SBA.gov’s Small Business Guide to Intellectual Property.

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About the Author:

Caron Beesley

Contributor

Caron Beesley is a small business owner, a writer, and marketing communications consultant. Caron works with the SBA.gov team to promote essential government resources that help entrepreneurs and small business owners start-up, grow and succeed. Follow Caron on Twitter: @caronbeesley

Comments:

Im currently in the process of registering a line of product under the trade name which I cant disclose yet, but its related to beauty management. This article is very useful.
Hi, I'll bookmark your site and have my friends check up here often. I'm quite sure they will learn lots of new stuff here than anybody else.
Trademarking should be a very important concern for the small businessman.......great information
Thanks for the helpful information. It provides some good tips for freelancers. Keep up the good work!
Can you have a company name and a different Trade name as to protect your company name?
Trade Names and Trademarks. What's the Difference? is a blog post that addresses your question. I hope this helps.
I don't understand how companies (like godaddy and other domain registrars and domain buyers) can hold onto some domain names (cybersquatting) that are either similar or identical to trademarks, then they auction them off, legally? Then they build a website around someone else's registered trademark, then even buy Google AdSense ads for those trademark keywords, which Google recently won a court case in, in their favor. I just don't get the value of a trademark with rampant misuse, mostly facilitated by the big companies like domain registrars and google.
Often it is because they have registered the domain names in advance of the trademark holder having acquired rights in their trademark. The ACPA only prohibits (for the most part) the registration and use of a domain name that is confusingly similar to an existing trademark. Many people do not realize that in order for you to receive protection under the ACPA you must first have had rights in your trademark before the other person registered the domain name at issue. So that may be one answer to your concern.
Trademarks are for goods; Servicemarks are for services. Neither has to be registered but can be "claimed" through the use of TM or SM. However, without USPTO registration you cannot use the circle-r; plus you do not have the other benefits of federal registration that Caron listed above. Not registering can prove very costly down the road.
Trad Mark A trademark is a mark that is applied to goods. For example, if you sell shoes, then the mark you apply to the shoes (e.g., “UltraLights”) is a trademark. Trad Name a trade name isn’t generally viewed as a trademark at all. Rather, it’s simply the name of a company. Trademarks relate to goods; service marks relate to services; and trade names relate to companies.

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