Why should I register my business name?
Why should you register your business name? Or, another way to say this is “do you really need an official trademark?” YES. YES. YES. And YES again!!!!!
So many business owners are out here operating without taking advantage of the protections offered by both federal and state governments for trademarks. This is because a lot of business owners are not aware of what they can do to make sure their brand is protected. They don’t know about the trademark laws or how exactly they can take advantage of them.
I guess we should first start by defining a trademark. The official definition of a trademark is “a word, a name, a symbol, or a device -- or a combination of any of these -- used to identify the source of goods offered by an individual or a business entity and to distinguish them from the goods or services of others.” Some examples of widely known trademarks are Coca-Cola ® or Apple ® . In relation to your own business, a trademark could be your business name, logo or slogan.
At common law, the owner of an unregistered mark has very few rights. These rights in what we call “common law trademarks” accrue with use and are restricted to the area where the mark is actually being used. I should add, that a prerequisite is that you must have been the first to use the mark in commerce, in that area. So, if you first started using your mark in Boston, and was the first to use it there, you would most likely be limited to enforcing your rights in the very limited area of Boston. Not that helpful, right?
As you can see, registering your mark is not truly necessary to protect or enforce it, however as both an IP attorney and a business owner, I would HIGHLY suggest looking into either a state or federal registration, preferably both, simply because there are a number of benefits that come along with having one. In Massachusetts, and a lot of other states, obtaining a state trademark registration puts others in the state on notice that you own the mark, and you are the ONLY person or business that has the right to use the mark. If someone infringes on that right, state law allows you to ask for an injunction and/or damages. However, there are limitations on state registrations -- most notably the fact that you can only enforce your rights in that state.
Compare to a federal registration. A federal registration offers the greatest amount of protection because it allows a trademark owner to enforce their rights nationwide. Some additional benefits a federal registration confers on its owner are:
A presumption of validity, ownership and exclusive use of the mark in commerce;
After 5 years of continuous use of the mark in commerce, no one can contest the validity of your mark;
Put others, nationwide, on notice of your ownership in the mark; and
Allows you to file suit for trademark infringement in federal court.
As a business owner, you most likely have invested a considerable amount of time, energy and money into creating your image and brand. Trademark law aims to protect and honor this. It takes into consideration that a business owner often times cannot just change its business name or product, at any point in time -- they have usually invested tons into marketing and advertising, trying to get their name out there and have others recognize their product as being associated with that company. A federal trademark registration prevents others from taking advantage of and benefiting from all of your hard work.
Other than being able to sue others for infringing on your trademark rights, there are several other areas where having a federal and/or state trademark registration may be helpful and lucrative for your business:
Licensing & Franchising Agreements: You can make people pay you to use your trademark for their own personal uses. For example, if you own a chain restaurant and someone wants open up their own restaurant within your chain -- they will have to pay you to use your name;
Domain Name: i.e. your website name. This most likely will be your trademark name. Having a registration prevents others from using your name, and if they have, it allows you to go after them for misappropriation and infringement;
Keywords, Online Advertising, and Search Engine Optimization: You have the exclusive right to use your trademark in online advertising, thus something like using your trademark as a keyword can be extremely beneficial to a business’s online search engine optimization;
Social Media: Exclusive use to promote your brand on social media platforms such as Facebook, Instagram and YouTube, by using your trademark, and the right to stop others from using it for their own personal gain.
To reiterate: Obtaining a federal registration for your trademark is EXTREMELY important, and something that should be a primary focus for your business.
If you have any trademark related questions, please do not hesitate to contact Attorney Christina S. Simpson, here.
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