What is the difference between a business name and a trademark?

By Justin McNaughton on July 28, 2016Posted in Trademarks

For that matter, what about fictitious names, dbas and trade names?

Recently, I’ve talked to a number of small business owners who have interesting and profitable businesses.  These businesses range from mechanics, to pastry stores, to musical bands.  Recently, I’ve begun asking for more detail as to what these businesses actually were.  This discussion always leads to confusion because many people do not know.

The easiest way to explain the differences between trademarks, business names, fictitious names, dbas, and trade names is to divide them into two groups:

1.      Business names, fictitious names, dbas, and trade names.

Whenever someone does business as something other than as his/her own name, states require registration of that business name as well as identification of the owner before they can conduct business in that state.  This requirement makes sense because it creates a record of who really runs a business in each state and where how can be located.  Jenny Silver may bake cakes at her house and sell them with a website and business cards that identify her business as Homemade Cakes.  

Without a registration requirement, if Jenny’s website and cards didn’t identify her, there would be no way for a customer or vendor to know that Homemade Cakes was really just Jenny.  Once Jenny registers her business name in a state (typically at the Secretary of State’s Office), anyone can search that business name and find Jenny’s contact information.  Some states call these registrations business name registrations, fictitious name registrations, dbas, or trade names.  They are simply formal public notice registrations of the person who is doing business as the registered name.

A company must also register to do business in each state where it operates, typically under its legal name.  If its legal name has already been taken in a particular state, then it will need to register a fictitious name or dba in that state.  This is true regardless of the company’s trademark rights in the name.

These business name registrations, fictitious name registrations, dbas, or trade names aren’t intended to provide the business owner any protection against competitors but simply to notify the public of the true owner and provide the owner authority to do business in a state.

2.    Trademarks

Trademarks, including trademark registrations, are different.  Trademark registrations do not grant any approval to do business in a state, but instead grant the trademark owner the right to prevent competitors from selling the same goods and services under the same or a similar trademark.  U.S. Federal trademarks are effective throughout the country while state trademarks are of limited effect.  Additionally trademark rights begin forming when the owners begins using the trademark, regardless of whether it is registered.

So in a way, trademarks are the opposite of business names, fictitious names, dbas, and trade names.  Trademarks keep others away from your products and services while name registrations allow you to operate in a state.

 Original