Business Organizations and Transactions
What is a trademark?What is a trademark?A trademark is a distinctive word, phrase, logo, domain name, graphic symbol, slogan, or other device that is used to identify the source of a product and to distinguish a manufacturer's or merchant's products from others. Some examples are Nike for sports apparel, Gatorade for beverages, and Microsoft for software. Consumers often make their purchasing choices on the basis of recognizable trademarks (sometimes referred to simply as "marks"). For this reason, the main thrust of trademark law is to make sure that trademarks don't overlap in a manner that causes customers to become confused about the source of a product. If two similar trademarks are being used by companies that provide different products or services, there may not be a trademark conflict. This is especially true if the two businesses serve only local markets and are hundreds of miles apart. However, in the case of trademarks that have become famous -- for example, McDonald's -- the courts are willing to grant much broader protection and prohibit almost all use of the trademark (or anything close to it) by anyone other than the famous mark's owner. For instance, McDonald's was able to prevent the use of the mark McSleep by a motel chain because McSleep traded on the McDonald's reputation for a particular type of service (quick, inexpensive, standardized). This type of sweeping protection is authorized by federal and state statutes (referred to as anti-dilution laws) designed to prevent the weakening of a famous mark's reputation for quality. In order to be eligible for trademark protection, a word or phrase must be "distinctive" -- unique enough to help customers recognize a particular product in the marketplace -- rather than generic, like "The Coffee House." A mark may either be inherently distinctive (the mark is unusual in and of itself, such as Diesel fashions) or may become distinctive over time because customers come to associate the mark with the product or service (for example, McDonald's restaurants). What is the "legal name" of my business?The legal name of a business is the official name of the person or entity that owns a business. If you are the only owner of your business, then its legal name is simply your full name. If your business is a general partnership, and you have a written partnership agreement that gives a name to the partnership, then that name is the legal name of the business. Otherwise, the legal name of a general partnership consists of the last names of the owners. For limited partnerships, LLCs, and corporations, the legal name of the business is the name registered with the state filing office. Your business's legal name will be required on all government forms and applications, and is particularly important to use on your application for a federal employer identification number. What is a fictitious business name?The term "fictitious business name" (or "assumed business name," "trade name," or "DBA" for "doing business as") is used when a business uses a name that's different from its legal name. For instance, if John O'Toole names his sole proprietorship Turtle's Classic Cars, the name "Turtle's Classic Cars" is a fictitious business name because it does not contain John's last name, "O'Toole." If your business uses a fictitious business name, you'll need to register it with a government agency -- in most states, your local county clerk's office. Copyright © 2006 Nolo Copyright © 1994-2006 FindLaw, a Thomson business DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter. |
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