Do I have rights to my business name if I didn’t file a trademark.?

5 Comments

1. Gordon J says:

   May 19, 2010 at 5:19 am

   Lots more investigation necessary to answer this question. It may be that you do, or it may be that your competitor does, and it may be that neither of you do, and you are both infringing.

   How did you register your business? Incorporated with the state or dba from the county? Same questions for your competitior. Where do you live? Is the other guy from the same state?

   You might find someone willing to give you some free help, but without meaningful information we can’t.
2. ron_mexico says:

   May 19, 2010 at 5:43 am

   Just to clarify some terminology, one doesn’t actually “file a trademark.” The USPTO simply registers trademarks. Trademark rights are acquired through use in commerce, not through any filing process. Also, contrary to Gordon’s answer, a DBA filing and incorporation are irrelevant as to trademark rights, and neither provides any exclusive rights to a given mark.

   That being said, website use of a mark, in and of itself, is NOT sufficient to obtain trademark rights. Further, the date your registered your domain is likely irrelevant. In any case, it’s not clear from your fact pattern the extent of your use of your mark and whether your use is junior or senior with respect to the other company.

   You would be wise to contact a trademark attorney. A trademark attorney will help you determine what your current rights are, whether your can obtain additional rights, and how you can pursue potential infringers. The fact of the matter is that you stand to lose significant rights to your mark if your opponent actively seeks trademark rights while you do nothing.

   I know you are worried about costs. However, legal costs are a part of doing business and is something you should budget for. Also, not all attorneys charge an arm and a leg. A typical solo practitioner is a small business owner just like you are.

   Edit: Wow, I didn’t know there were so many haters here. The perfect one-to-one ratio between Gordon’s thumbs ups and my thumbs downs almost makes me think that Gordon has some ringers out there. I love how 5 people gave me a thumbs down but took no time to tell me why my answer is legally incorrect. Unfortunately, no amount of thumbs ups will make Gordon’s answer correct.

   The fact of the matter is that DBAs and corporate names have nothing to do with trademarks. Even a novice trademark attorney will tell you this. The article below provides more explanation. A relevant portion of the article is also reproduced below.
   http://www.bizadvisor.com/tm.htm

   “A common mistake regarding a business name is the belief that the filing of a DBA or the registration of a corporation with the Secretary of State protects the name. They don’t. Do not assume that any name filings provide protection of the name. Those types of filings are not intended to protect your rights to a name and they only remotely affect the protection of a name from use by others.

   The key to creating rights to a name is the actual use of the name in business. The party first using a name or trademark in a particular geographic area in selling a type of product or service has the superior right to the name or mark in that area for that type of product or service. All other considerations of rights to business names or marks have to contend with that basic rule.”
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