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Trade Names and Trademarks - What's the Difference?

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Trade Names and Trademarks - What's the Difference?

By JamieD
Published: March 25, 2009 Updated: December 16, 2011

The laws and terminology associated with trade names and trademarks commonly fall victim to misconception and confusion. Often times people have trouble understanding and even acknowledging a difference between the two. Some issues surrounding the topic arise from the overlapping of tradenames and trademarks. While many companies don't seem to have any correlation between their chosen representations, others incorporate at least part of their trade name in their trademark. Some companies, such as Coca-Cola, use their entire name also as a brand. Confused yet?

To explain the terminology in the most simple of terms, you can associate trademarks to brand names and trade names to company names. The trade name used by a company is the official name under which they conduct business. Filing taxes, billing, and formal identification are all examples of issues that could fall under a company's trade name. A trademark would be used to represent and distinguish a company's products in the marketplace; these are the names most generally recognizable to consumers. Words, names, symbols, designs, and slogans are all examples of different possible trademarks.

Registering Your Trade Name

A trade name (or assumed name, or DBA name, short for doing business as) is a business name that is different than your personal name, the names of your partners or the officially registered name of your LLC or corporation.

For example, let's say Mary Smith is a sole proprietor of a catering company she runs out of her house. Mary wants to name her business Seaside Catering instead of using her business' legal name, Mary Smith. In order to use Seaside Catering, Mary will need to register that name as a fictitious business name with a government agency. Which government agency, depends on where she lives. In some states, fictitious names are registered with the state government; in others, you register fictitious names with the county clerk's office; and in others, there are no laws requiring businesses to register a fictitious business names.

Visit the Business Name Registration page to learn how to register a trade name in your state.

Registering Your Trademark 

Choosing to register a trademark is up to the discretion of individual businesses. Trademarks can be registered on both federal and state levels and while not required, are heavily recommended. Registering a trademark guarantees exclusive use, establishes 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.

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.

Before You Submit An Application:

  1. Determine if your product is eligible for trademark registration. Application eligibility is based on the current or intended use of a mark in commerce; marks cannot be registered to simply reserve the rights.
  2. Conduct a trademark search. Use the TESS (Trademark Electronic Search System) Database to determine if your mark is already registered and in use by someone else. If your mark includes any design elements, you must search using the correct design code. This will save you time and money because the USPTO will not provide any preliminary searches before an application is filed!

As with trade names, registering a trademark at the state level varies from state to state. The USPTO's page on State Trademark Information can provide you with the appropriate place to look for state-specific

information.

Visit SBA.gov's Intellectual Property page for more trademark information.

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Comments:

Your article was very helpful, thank you. Just an FYI...the TESS url leads to an error, but I Googled it. Thx.
Thanks for your information, I often confuse the two concepts. I went to register the trade name for his company.
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This is fantastic information. I really like the whole forum and in times like these when business are struggling to keep up, it is important to know how to legally protect oneself.
In some states, fictitious names are registered with the state government; in others, you register fictitious names with the county clerk's office; and in others, there are no laws requiring businesses to register a fictitious business names.
My company received a Legal letter from a company that also has the word "raw" in it, stating that we would have to drop Raw out of our name or they'd take legal action. They said it is Trademark infringement and that our names are too closely related and could confuse their customer. Can they do this? is there a way for us to retain the word Raw at all?
Your article was very helpful, thank you. Just an FYI...the TESS url leads to an error, but I Googled it. Thx.
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