do sole-proprietorship company names filed with a DBA have the same TM rights as an LLC's company name? As long as I put a TM next to the name does filing as an LLC provide any trademark advantages? I don't plan on registering with the USPTO.
Trademark rights are based on use on products or services. A company's right to its tradename as a trademark is only as far as its connection with the goods or services it provides.
Registration is good, and has many advantages, but you don't need to register a trademark to have some advantages. Make sure, though, that your mark is not being used by someone else in your industry, or otherwise in a way that could cause confusion between your good or service and the other's good or service. Using a service like Google or Bing is good, but may not be enough. Also, keep evidence of your initial use of the mark in commerce. Once you have a positive cash flow and are looking at the longer term, you might want to revisit the idea of registration.
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Intellectual Property Law Attorney
You seem to be confusing a company name with a trademark. A trademark is a title, logo, or name that becomes associated in the minds of consumers with the goods and services of a specific company. Often, a company's name is not a trademark. Trademark rights associated with the goods and services of a company arise from use in commerce. What matters is whether members of the public perceive that the trademark you select is associated with your company's goods and services A company name is not a trademark---it is merely a name. There is no advantage in trademark law for filing as an LLC, but putting a TM next to the name of your company is not sufficient to give you trademark protection. You can't create a trademark out of thin air by putting a TM next to your company name
You need to first find out whether you can use your company name as a trademark. This requires retention of counsel to conduct a trademark clearance. Failure to conduct a trademark clearance is often a fatal mistake for small companies. Until you conduct a trademark clearance, you cannot possibly make a decision as to whether to use your company name as a trademark.
Further, once you work with counsel to conduct a trademark clearance analysis and select appropriate "branding" for your company, you absolutely should register with the USPTO. Registration has enormous advantages, and the cost is minor ($375 filing fee for one class). The minor filing fees for US trademark registration is one of the great remaining bargains in the world, and it is foolish for any company (even a sole-proprietorship) that does not take advantage of this.
Most importantly, trademark protection is not a "do it yourself" undertaking. You need to invest in competent legal counsel to lay the proper foundation for your business---including its "branding". This is critical even for a sole-proprietorship. The investment you make now in legal counsel will pay massive dividends in the long run.
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Trademarks apply to use in commerce on goods or services. While first to use is more important than first to register, if you don't hold it out as a trademark, but instead a tradename, you may be on the defensive in litigation. Tradenames are not protectable if they are not also trademarks.
The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.
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Intellectual Property Law Attorney
Q: "Are trademark rights the same with a DBA and LLC company name?"
R: I'll be more blunt than my colleagues: The premise of your question is wrong. NO trademark rights develop in a trade name, at all, unless the trade name is also used as a trademark. Pepsico, for example, is a trade name without trademark rights -- the trademark is Pepsi. It would be deceptive, and therefore unlawful, to affix the "tm" notice adjacent to the trade name Pepsico.
All your other questions include the same false premise.
Why don't you ask what you really want to know? That is: "What type of business entity would provide me with the strongest trade name rights?" The answer is that any business entity that must register with the Secretary of State enjoys a statewide presumption that its trade name is valid and exclusive to the registrant. A sole proprietor that registers and operates under a fictititious business name, by contrast, enjoys only a county-wide presumption. So, as far as geographic scope of trade name rights is concerned, there is an advantage to doing business as some type of corporation or partnership rather than a sole proprietorship.
But what you really need is to speak with a trademark attorney who will help you unlearn what you think you've learned about trademark law. And then you can properly decide how to brand your business. Good luck.
The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
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Intellectual Property Law Attorney
NO. And that's not how you get trademark rights. Sticking TM next your company name may or may not be proper. A dba is local in some states (here in IL) and statewide in others, whereas LLC's are statewide, so an LLC will often give a wider scope of protection to the name. Use in commerce is the key to getting trademark rights in the USA. So, you have many errors in your basic assumptions and need to see a trademark attorney to get your confusion eliminated and replaced by correct principles. You demonstrate that a little [wrong] knowledge is a dangerous thing. Do yourself a big favor and see that trademark attorney. There are many excellent ones in CA that regularly post here. Look at the answers and pick one you think you might like representing you and advising you.
I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.
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I think asker is needing to understand what exactly DOES putting a TM next to a name or slogan mean, rather than what it does not mean. TM stands for, not Trademark, but "we consider this to be our proprietary name, slogan, program, etc. and therefore the public is put on notice such that --in theory--no one else ought to copy that slogan, name, program, etc. In reality, it gives no real protection, just perceived protection, and perception does have power. I advise my clients to use the TM while they are awaiting the approx 1 year process it takes for the USPTO to go through the application, or if they are not yet ready to apply. I advise for them to put the TM on every slogan or name they consider "proprietary." But I believe asker has been well warned the TM does nothing legally. It just looks like it does...perception. And perception has its place. The rest of the comments LLC vs DBA are right on. I do disagree with having to hire a big firm to do an expensive comprehensive legal search before filing a trademark app; That was before the internet when you had no choice. You can now a days get most any use of a word or name through google, that any database will find in any event. No search will uncover small local use of a name not on the internet nor major advertising. That will always be a risk, albeit small. And Anyone can search the trademark database to see if anything similar is taken, and decide from there.The USPTO filing fee is $275 on line. I have done these in 2 hours or less. Definitely the recommended approach.
The foregoing is for informational purposes only and may not be relied on as attorney-client advice.
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