Welcome back to our series "IP 101: Your Questions Answered." Last time we tackled questions surrounding copyrights and music. In this edition, we'll look at some concerns entrepreneurs have concerning business formation and LLCs.
Is business registration at state level the same as a business name?
That depends on where you're located; some states have separate processes for business registration and business names, and some do not. Doing some research on your state government website (usually the Secretary of State's page) will outline the process. Many times your business license has one name, while your operating or doing business as (DBA) name is different from that and requires different registration.
If I register my business as an LLC at the state level, can someone else register a trademark with the same name as my business after me?
If you were to register your LLC at the state level and someone else registered a trademark on that name federally, then that person would be able to take that name on the federal level. There are some considerations that can affect the registration, however. The registration depends on whether or not the two similarly-named entities are competing and could therefore cause confusion for consumers. For example, Traklight the band isn't competing with Traklight the software company, so there's no concern about consumer confusion. It also depends on if you were the first to use the name to sell and operate, as you may be able to claim priority; however, it will also depend on whether they're operating federally and you are not. As with all complex legal matters, it's best to seek professional advice on whether or not your name can be trademarked.
Does your LLC count as a TM or some kind of brand protection?
Simple creating a LLC doesn't provide for any protection beyond the fact that the state you've registered in won't let another entity register a LLC with a similar name. If you want to get trademark protection for your brand, you need to start using either the name of the LLC or another name to operate, and then you can take steps to protect that name using a trademark.
If the business is a non-profit agency registered as such with the IRS, is trademarking the business name still recommended?
Even if you have a non-profit, it's still important to trademark your name as you want to avoid confusion in the minds of donors between two non-profit organizations. Registering with the IRS doesn't do anything for you in terms of brand protection.
How do I know if I can use a business name if I can't find a trademark on it, but there is a company in another state that is using that business name and I do not see the TM symbol noted?
Just because a name isn't registered with the USPTO doesn't mean it isn't protected under "common law" trademark guidelines. The first thing to do is check to see if this company is part of the same field as your own. If there is no conflict there, check to see if they're operating in the same state as you. You also want to check to see if they were operation under the name first, as that may preclude you from using the name in your state or any state. It's best to seek legal advice for tricky situations such as this.