I heard that if you use anything other than your legal name, you have to register it as a business name. I live in Texas, I sell digital downloads that people print themselves. I do not ship anything. Right now I am using my first and last name as the shop name, but I would like to use something else. If I decide to change it to something like (name) Designs, would that require registration? If so, how would I go about registering in Texas.
Thanks in advance.
No, you can't use just whatever name you want. Many "names" are Trademarks and are already taken. Some words or names can be used but would not be suitable for Federal Trademark Registration such as geographically descriptive names, proper names, generic terms, A trademark attorney can advise and conduct a trademark search for your guidance.
My comments have been made without discussion. An attorney client relationship has not been established. There may be conflicts which prohibit my providing you with specific legal guidance. Any contact with you beyond these few general words will start with a disclosure of opposing parties so that a conflict check can be made. You should discuss with an attorney.
Yes, you will need to file what is called an assumed name or fictitious name certificate. These are often called "dba's." It is a fairly simple form and many people can do it without an attorney. In most states, they are filed in the County where you live. Call your local county and ask where you go to file a dba, or do a quick internet search. Instructions, forms and fees should be easily located.
If you want to protect your name and ensure that others cannot use it and ensure that you are not infringing someone else's name then you need to do a proper search and protect your name. One way of achieving that is to obtain a trademark on your name. Many of us offer free initial consultations, why not use one?
You are probably conflating two things. One is that TX requires a DBA registration under statute if you are holding yourself out to the public under another name than your legal one. This is no big deal, but you do need to make sure that whatever name you use is clear and not in conflict. This is trademark clearance because unless the name is flat out generic or highly descriptive then it would be used as a trademark.
Before you invest in any trademark make sure you get some legal guidance. It is of course best practice to clear it before you start using any trademark and starting with a strong one is your best strategy. Know as well that merely registering your business name with a state or county agency or acquiring a domain does not convey any right to use that name in commerce as a source identifier or trademark. For example, I can presumably register my new tech start up "Boogle" with the TX secretary of state because there is no other business already doing business there under that name, but this does not mean that I would not be infringing on the Google trademark, which I would be. The onus is on you to ensure the name you choose is not a problem.
Your trademark will be one of if not the most important and valuable business assets you will have and you will ultimately spend more money in support if it than you will anywhere else (advertising, marketing, PR, branding, packaging, etc.). So you owe it to your business and yourself to make sure you handle this properly upfront and the first order of business always starts with a proper and comprehensive clearance.
Whenever you endeavor into investing in a trademark it is very important that you conduct the proper clearance due diligence on all the text names upfront and before you start spending any money in support of it or submit an application to the USPTO. In the US, this means searching under both federal (USPTO) as well as common law because trademark rights stem from use in this country NOT registration. This means that acquiring a federal registration does not necessarily mean that you are not infringing on another's intellectual property.
I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free consultation, get some insights then pick the best fit to work with and know you are free to work with counsel located anywhere as you have many options available not just those that provide services in your home state.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Lapin, LLC on the basis of this posting.
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