Registering your LLC ≠ Ownership of your Brand Name
Here’s an important tip:
When you create an LLC, S-Corp, C-corp, or other business entity, you chose a name that wasn’t already in use in your state. This doesn’t protect you from someone in another state using the same (or similar) name as you! This doesn’t even usually protect you from someone in your own state having a similar sounding name (aka it could confuse your customers/clients if it’s in the same business area).
There’s also plenty of people operating businesses as sole proprietors, which aren’t formally registered. So those people could be using your name in your state or another state. So what does all this mean?
TRADEMARK REGISTRATION: Get that Circle R!
Having a ®️ (registered ™️):
- Protects your brand (within your business area) in the U.S. from anyone using the same name;
- Protects your brand from anyone using a confusingly similar name (within your business area);
- Gives you ownership over your mark;
- Right to send cease & desist letters to copycats / confusingly similar businesses;
- Right to sue for infringement.
Trademark rights are vested initially in the first person who uses the mark. So, if someone uses a name before you – say by registering an LLC in Idaho while you live in Michigan – then that Idaho person has state trademark rights, often called common law trademark rights. That person can use the name where consumers recognize it.
Filing for a trademark after someone has used the name before you is still viable if they haven’t registered for a federal mark. If you file before the Idaho person, then you can restrict him or her from using outside of Idaho (or where consumers recognize the mark).
Conduct a Trademark Search before Trademark Registration
Because someone in another state may have the exact or similar sounding name, it is always recommended to conduct a full comprehensive trademark search that includes a common law search. Even looking up all the business listings cannot cover the search because common law searches look for the unregistered marks that are used by Sole Proprietors or people selling goods on Etsy, eBay, Shopify, or other online marketplaces or social media.
In addition to discovering common law uses that may be problematic, a proper search will provide you with a risk assessment on the success of federal registration. Examiners will look for any federal trademarks that may cause a likelihood of confusion. A proper search by an experienced attorney should guide you on whether to proceed with the filing.