THE BUSINESS ARENA

Warning! SMALL BUSINESS GETS HURT THE WORST! If you are in business for yourself you need legal help more often than most.

Small business people sign contracts, lease offices, hire and (gulp) fire employees, are wide open for discrimination lawsuits, and more. Why are we so vulnerable? Because they know that in most cases WE DON'T HAVE THE MONEY TO DEFEND OURSELVES!

THE FAMILY ARENA

What does your will say? If you are like most Americans it says "I am a blank piece of paper"! Or maybe you went to office supply and bought a boilerplate will where you just fill in blanks. Or you downloaded this cool program that did it all for you? Do you know in your heart that something like that will apply in YOUR state? Not sure? What's answer? Calling an attorney but at how much per hour? If you want to adopt a child or care for an ailing relative there are risks as well.

WHAT TO DO

Educate yourself. Know when you are taking a risk and weigh risks against benefits. Next, never rely on advice of non professionals. They won't experience consequences if they are wrong ... YOU will. Last, don't do it yourself. Even if you are an extremly competent person remember that legal matters are NOT a "do it yourself" project.

Absent federal registration, you would have to prove these things in court as preliminary questions of fact. Imagine trying to satisfy a court that you are entitled to exclusive nationwide use of mark if you've only been using mark in two states. Other benefits of federal registration include: (a) fact that registration acts as constructive notice of your claim to mark; (b) federal court jurisdiction can be invoked; and (c) registration can be used as a basis for obtaining registration in other countries.

=> What Can Be Trademarked?

It may be easier to answer this question by looking first at what cannot be trademarked. The U.S. Patent and Trademark Office (PTO) won't allow you to register a mark that is not distinctive (discussed below); that is already in use or that contains names of living persons without their consent; United States flag; other federal and local government insignia; name or likeness of a deceased U.S. President without widow's consent; words or symbols that disparage living or deceased persons, institutions, beliefs or national symbols and marks that are judged immoral, deceptive or scandalous.

=> Distinctiveness

As a general rule, a trademark must be distinctive in order to be accepted for registration. This is an enormously complex issue in trademark law and beyond scope of this article. But for our purposes, just keep in mind that a mark that is in ordinary or common usage in community will not be capable of registration because no one person can be said to be "owner".

For example, let's say your business is selling still life paintings. You would have trouble registering "Still Life" as a trademark because it is a term in common usage and has a general meaning in community. (Note though that certain types of marks while not distinctive YET may become so in future, i.e. they are capable of acquiring a secondary meaning. Such marks may be eligible for registration and limited protection on supplemental trademark register. For more on this, consult your attorney.*) (On other hand, you may well be able to register name Still Life as your fictitious business name provided same or a deceptively similar name is not already registered in your county.) In order to maximize chances of your trademark being accepted for registration, therefore, try to come up with a "coined" or "fanciful" name. The example often given by trademark lawyers of a particularly successful coined name is Kodak. It's a name that means nothing apart from its association with cameras and now expanded lines of products but is immediately identifiable by anyone who sees it as a trademark of Eastman Kodak company.

So, more novel, unique and fanciful name, more likely you will be able to register it federally.

DOMAIN NAMES

So, how does your domain name figure into all of this? In particular, what is interrelationship between registered trademarks and domain names?

=> Domain Names VS. Trademarks : David VS. Goliath

As a general rule, as law presently stands, it is *possible* to register any domain name that isn't already taken without regard to whether that name is a trademark owned by a third party. *But do so at your peril*. Courts are increasingly siding with trademark owners against domain name holders even when domain name holder acquired domain name with perfectly innocent intentions, i.e. with no intention of infringing on trademark or holding it for ransom (cybersquatting).

=> Domain Names AS Trademarks

Let's say that domain name you want to use is not already a trademark. Can you register it as a trademark? Depends. Maybe.

A distinctive, coined domain name may well be capable of trademark registration for reasons discussed above. An example is my own domain, ahbbo.com. The word "ahbbo" has no common, ordinary meaning and so would most likely be capable of being registered as a federal trademark. If I tried to register trademark "A Home-Based Business Online" I would have trouble even though I own that domain name because words are, in one variation or another, in common, ordinary usage.

To be registrable, however, domain name must act as a source identifier for product or service offered by business (simply because ANY trademark must identify and distinguish source of product or service), and not merely act as an address used to access a website.

SUMMING UP

Let's go back now and answer original question:

"... I'd like to register my business name with proper town authorities as a sole proprietorship. To protect myself and my business name from being copied and altered, do I have to register any and all variations of name? And is this done separately or is it done under one application? ... Is this what I need to do in order to stop anyone from using a variation of my business name? And can my business name be trademarked along with its variations?"

=> "To protect myself and my business name from being copied and altered, do I have to register any and all variations of name?"

No. The question misconceives function and effect of a fictitious busness name. The only function of registered business name is to allow consuming public and others, such as suppliers, to ascertain legal entity behind fictitious business name. It is not business's name that requires protection from being copied and altered, it is business's trademark(s). If you are looking to establish a "brand" with your business name, make sure name is same as your trademarks and register your trademarks.

=> "Do I have to register any and all variations of name?"

This was asked in context of business name. For reason just given, answer is no. But for purposes of our trademark analysis, let's reframe question. Is it necessary to register any and all variations of trademark?

No. Once you have federal trademark protection for your mark, trademark examiner will (in theory, at least) not allow anyone else to register a mark that is identical or deceptively similar to your mark.