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Business Name vs Trademark

By Deborah Sweeney

MyCorporation makes it easy to file a trademark application starting at $149.

A business must register the name with the Secretary of State and, as long as it is distinguishable from any other business name within the state, the business will be recognized under that business name and no other business can use that name within that one state. A trademark on the other hand is not a name, but property. A trademark is generally used to brand a certain good or service and has a value in of itself. For example, imagine a well built car with no markings.

Is protecting my Name different from a trademark?

There's a short answer and a long answer to this question. Let's start with the short answer. The business name is simply that, a name, a way to identify a business, entity, or individual. Due to the potential value of a trademark and the inherent property rights entailed within a trademark, the application for a trademark is much more complicated. Trademarks are registered under the federal government through an application process that can last over six months. The property rights of trademarks can be enforced by both the federal government and by the states.

Now for the long answer. The business name is limited to the state. States have differing laws on how different the name must be from other business names within the state. Some states have very loose laws and say the name has to be unique and easy to identify (e.g., filing of "Transamerica Airlines, Inc." was acceptable even though the name "Trans-Americas Airlines, Inc." was already in existence). Other states impose strict guidelines that restrict names from being "deceptively similar" to prevent unfair competition (e.g., filing of "Transamerica Airlines, Inc." would be too similar to "Trans-Americas Airlines, Inc." that would confuse consumers on which corporation is which). However, the business name does not need to be different from business names in other states. In fact, a corporation can do business in another state where its business name is being used by another company by registering for a "dba" (doing business as) or Assumed Business Name or trade name (depending on the state). Most important to the distinction between a business name and trademark is the fact that a corporation can conduct business with the same name of another existing business. Registering the business name with the Secretary of State merely protects that name from being used by another business within that state, but not in another state.

Trademarks, on the other hand, are property. Similar to any other tangible property, the owner of a trademark has the exclusive rights to the trademark and can prevent another individual from using the trademark. A trademark is also not limited to a business name but can also include a phrase, logo, symbol, design, image, or a combination of these elements. As mentioned above, this mark cannot be similar to any other trademark. A mark can use the same words as another mark, as long as the marks are not deceptively similar. By simply changing the font, the font color, or by adding a different image, the mark may be trademarked by the federal government (e.g., compare Apple, Inc. with Apple Corps Ltd.). However, the trademark cannot tarnish the value of another trademark or blur the consumer's perception of the trademark with another. Because trademarks include exclusive rights to the mark, the application process is more complicated. After applying to the U.S. Patent and Trademark Office, the trademark undergoes an examination period that can last over six months. Once all procedural and substantive issues are resolved, the trademark is then placed in a 30-day waiting period where third-parties have the opportunity to challenge the trademark through an Opposition Proceeding. If no challenge to the trademark is substantiated, the trademark is officially registered. Unlike copyrights and patents, trademarks have an unlimited lifespan.

How do i get a federal tax id for my business?

Generally, businesses need a Federal Tax ID number or an Employer Identification Number (EIN) to legally conduct business. Whether a sole proprietor or a corporation, an EIN is necessary. This number is used to identify a business entity for tax purposes and is fairly simple to obtain. The IRS supplies multiple ways to apply for an EIN. The traditional method is the fill out Form SS-4 (can be downloaded from www.irs.gov ) and mail or fax it directly to the IRS.

The IRS has also supplied an online application that asks the applicant a series of questions regarding his/her business. This application must be completed within one session so it is important that an applicant has all necessary information available at the time of application.

A third party is allowed to apply for an EIN, however that third party must be authorized by the business. If a sole proprietorship or general partnership, the sole proprietor or general partnership must authorize the third party to apply for an EIN. If a corporation, the corporation (and not simply a shareholder) must authorize the third party to apply for an EIN.

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