Handbook / Business structure

How to trademark a business name: rights, benefits and steps

Your business name is part of your reputation. A trademark can protect it from competitors who might confuse customers by using the same or a similar name. You may already have some rights without filing anything, but registration can make them much stronger. This guide is general information, not legal advice.

What a trademark protects

A trademark identifies the source of goods or services: your business name, a product name, a logo or a slogan. It protects against others using a confusingly similar mark for related goods or services. The SBA explains that a trademark can protect the name of your business, goods and services at national level, preventing others in the same or similar industry in the United States from using your trademarked names.

A trademark is different from:

• an entity name, which your state registers for an LLC or corporation
• a DBA, which records a trade name but does not give legal protection
• a domain name, which protects your web address

See business name search.

Common-law rights

The USPTO explains that you are not required to register a trademark. You can rely on common-law rights, which are based on use of the mark in commerce within a particular geographic area. You may only be able to enforce those rights in the areas where you use the mark, if your use covers less than the whole country. Keep evidence of when and where you started using your name.

State and federal registration

You can also file for state, federal or international registration. State registration covers a single state. Federal registration through the USPTO covers the United States.

Benefits of federal registration

The USPTO lists benefits of federal registration, including:

• your mark appears in the USPTO database, so others searching will find it
• a legal presumption that you own the mark and have the right to use it nationwide for the listed goods or services
• the ability to bring a lawsuit concerning the mark in federal court
• use of the registered trademark symbol ®
• a basis for filing in other countries
• the ability to record the registration with U.S. Customs and Border Protection to help stop infringing imports

Step 1: search first

Before you file, search the USPTO's trademark database for identical and similar marks used for related goods or services. Because the database does not include unregistered common-law marks, also search the internet, state trademark databases and business name databases, as the USPTO recommends. A conflicting mark is a common reason applications run into problems.

Step 2: identify your goods or services

Trademark applications cover specific goods or services. Describe what you actually offer under the name. Applications are organised by classes of goods and services, and fees depend on what you file; check the USPTO's current fee information before applying.

Step 3: file the application

Applications are filed online through the USPTO. You will need the mark, the owner's details, the goods or services, and either evidence of use in commerce or a statement that you intend to use the mark. Many small businesses use a trademark attorney to reduce the risk of costly mistakes; check the USPTO's guidance on whether you need one.

Step 4: examination

A USPTO examining attorney reviews the application. If there are problems, such as a likely conflict with an existing mark or an unclear description, you will receive an office action and must respond by the deadline. If approved, the mark is published so others can oppose it before registration.

Step 5: registration and maintenance

Once registered, you can use the ® symbol. Before then, many businesses use TM to show they claim the mark. Registrations must be maintained with filings at set times and continued use; missing deadlines can cancel a registration. Put the dates in your calendar.

Watch for scams

The USPTO warns that scammers often pretend to be from the USPTO, claim there is a problem with an application or registration, pressure you to act immediately and ask for a fee or personal information. It also says USPTO employees will never ask for personal or payment information over the phone. Check that correspondence really comes from the USPTO before paying.

Protecting your mark in practice

• use the mark consistently
• monitor for similar names in your industry
• address infringements promptly, often with legal help
• make sure contracts with designers transfer ownership of logos; see intellectual property

Search thoroughly first, keep evidence of use, register at state or federal level for stronger rights, describe your goods or services accurately, respond to USPTO actions on time, maintain your registration and watch for scam notices.