DBAs, TMs & .coms

Written by Elena Fawkner

"... I'd like to register my business name withrepparttar 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 ofrepparttar 119309 name? And is this done separately or is it done underrepparttar 119310 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?"

This question (an extract from an email I received from a new subscriber duringrepparttar 119311 week) is a good illustration of how confusingrepparttar 119312 purpose of and difference between business names and trademarks can be for small business and others without ready access to an army of lawyers to lead them throughrepparttar 119313 maze. Add your domain name torepparttar 119314 mix and it becomes as clear as mud.

In this article, we'll look at what business names, trademarks and domain names are (and aren't), what you can and need to do to protect them and issues to think about when deciding upon what to choose for your business and domain names and whether trademark protection is appropriate (or even possible).


If you're going to conduct your business under a "fictitious" name, i.e., one other than its legal name, you will need to registerrepparttar 119315 fictitious name withrepparttar 119316 appropriate government agency in your state. This usually means your local county recorder's office but, depending on where you live, it may mean your state's Secretary of State Office. In countries other thanrepparttar 119317 U.S.,repparttar 119318 appropriate body may be some sort of government Department of Small Business.

So what's your "legal" name? If you're conducting business as a sole proprietorship, your legal name is your name, i.e. Fred Smith. If you're any sort of other legal entity such as a corporation, limited liability company, limited partnership etc.,repparttar 119319 legal name of your business isrepparttar 119320 name of your corporation, company, or limited partnership.

If you conduct business under your own name or that of your corporation, limited liability company or limited partnership, you do NOT need to register a fictitious business name withrepparttar 119321 State because you are not conducting business under a fictitious name, you are conducting it under your business's legal name.

=> Legal Purpose of a Fictitious Business Name

The reason you must register a fictitious business name to operate a business under a name other than your business's legal name is to protectrepparttar 119322 consuming public - those members ofrepparttar 119323 public who come in contact with your business - as well as other parties such as suppliers.

The purpose of registration is so that those who deal with your business can search for and identifyrepparttar 119324 person(s) "behind"repparttar 119325 name. As a fictitious business name is not a legal entity, it does not have contractual capacity (i.e. it cannot enter into contracts in its own name). A consumer wanting to do business with your business needs to be able to verify thatrepparttar 119326 person with whom he or she is contracting has authority to enter intorepparttar 119327 contract asrepparttar 119328 business entity. By searchingrepparttar 119329 fictitious business names register,repparttar 119330 consumer can find out who is "behind"repparttar 119331 business, as that isrepparttar 119332 party with whom he or she will be contracting (and, sometimes, suing ifrepparttar 119333 transaction goes bad!).

Example: Alfreda Smith conducts her florist business underrepparttar 119334 registered fictitious business name, "Blooming Right". Florist Supplies, Inc. wants to enter into a contract with Blooming Right to supply Blooming Right's stock of tulips. As Blooming Right is not a legal entity and only a DBA ("doing business as", another term for a fictitious business name), Blooming Right does not have legal capacity to enter intorepparttar 119335 supply contract with Florist Supplies, Inc.. (Florist Supplies, Inc., of course, being a corporation - as evidenced byrepparttar 119336 "Inc." - is a legal entity, and therefore has contractual capacity.) For this reason, Florist Supplies, Inc. will only be prepared to contract with Alfreda Smith,repparttar 119337 legal entity behind Blooming Right. Florist Supplies, Inc. identifiesrepparttar 119338 legal entity with contractual capacity by searchingrepparttar 119339 fictitious business names register. Accordingly,repparttar 119340 supply contract finally entered into will be between Florist Supplies, Inc. and Alfreda Smith, d/b/a Blooming Right.

You should also know that you won't be able to open a bank account for your business unless and until your fictitious business name is registered withrepparttar 119341 state.

Just because you've registered your business name in your county doesn't mean that someone else can't registerrepparttar 119342 same business name in another county. Registration is only designed to allow people who deal with your business to identify you asrepparttar 119343 person behind that particular business. It doesn't give you exclusive use of that name for all purposes in all areas. For this reason, if your business name is also your business's "brand", you should also register it as a trademark, if possible.


As is evident fromrepparttar 119344 purpose of registering a fictitious business name, a business name is NOT a trademark and a registered business name will generally NOT operate to protectrepparttar 119345 name from use by others (except as an identical or deceptively similar business name inrepparttar 119346 same county). So how do you protect your business's "name" if it also identifies and distinguishesrepparttar 119347 source of your goods or services from those of your competitors'? The answer is federal trademark registration. (Although you can also register trademarks atrepparttar 119348 state level, state registration confers only limited benefits and should be considered only if federal registration is not possible).

=> What is a Trademark?

As suggested above, a trademark is either "a word, phrase, symbol or design, or combination of words, phrases, symbols or designs, which identifies and distinguishesrepparttar 119349 source ofrepparttar 119350 goods or services of one party from those of others." (http://www.uspto.gov/web/offices ac/doc/basic/basic_facts.html) A service mark isrepparttar 119351 same thing except it relates torepparttar 119352 source of a service rather than a product.

=> Registration Not Required

A trademark (or service mark) does not need to be registered to attain status as a mark i.e. unregistered trademarks are recognized byrepparttar 119353 common law. If you have used a distinctive trademark (that you own) in commerce, then you probably have a common law trademark already.

But registration confers benefits not available if you rely only on your common law trademark rights, such asrepparttar 119354 presumption that you arerepparttar 119355 owner ofrepparttar 119356 mark forrepparttar 119357 goods and services specified inrepparttar 119358 registration andrepparttar 119359 entitlement to userepparttar 119360 mark nationwide.

Cyberlaw 101

Written by June Campbell

You've already discovered thatrepparttar Internet is a great medium for promoting your business. But just as you can userepparttar 119308 Net's various components likerepparttar 119309 web, email, chat and newsgroups to network, to make new contacts and to generate leads, you can easily find yourself in hot water over legal disputes and legal challenges.

Doing business onrepparttar 119310 Net can be fraught with legal perils for those who act unthinkingly or unknowingly. In some situations, laws governing cyber activities are clearly defined and reflectrepparttar 119311 laws that govern our activities inrepparttar 119312 real world. In other cases,repparttar 119313 Internet is still a "gray area", and laws will be established throughrepparttar 119314 outcomes of court cases.

Although situations differ, as do laws in various jurisdictions,repparttar 119315 following tips might help you stay clear of trouble:

1. Registering a domain name doesn't prevent legal challenges to your right to use that domain name. Many a web site owner has been dismayed to hear from a company claiming his or her domain name is a trademark violation. To avoid problems in this area, conduct appropriate searches before registering, and consider registering your own domain name as a trademark. Businesses that register domain names can help you assess your options.

2. You risk copyright violation if you copyrepparttar 119316 content, graphics, layout, name, look or feel of another web site without express permission. Several countries ofrepparttar 119317 world, including Canada, andrepparttar 119318 US, have signed an international copyright convention that protects copyright in member countries. If discovered in violation of copyright, your penalty could be as small as being asked to removerepparttar 119319 offending material to as large a penalty as a court might see fit to award.

3. If your web site contains bulletin boards or chat rooms, you can be held liable for material posted by visitors to your site. To reducerepparttar 119320 potential for problems, check your forums and chats regularly and remove any content that could create trouble. Material to watch for includes anything that could be considered libelous, promotes hate, could be considered adult content (and you do not have an adult site), could be perceived as threatening or harassing to others, or promotes an illegal activity, etc. 4. Avoid advertising statements that would be illegal or prohibited in other media. Be particularly cautious if your site advertises alcohol, tobacco, pharmaceuticals, financial services, gambling, contests or adult entertainment.

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