DBAs,TMs,amp,.coms,...,like,re law DBAs, TMs & .coms

When you work with an attorney, you will have no problem reducing the risks associated with getting your case in front of a judge and jury, or other formal court, when you need to. However, every case is different. It is important to work wi Bankruptcy is a situation, wherein an individual is termed as unable to discharge all the debts. When a person or a company is not able to pay off its creditors, it has an obligation to file a bankruptcy suit. In fact, a bankruptcy suit is a

"... I'd like to register my business name with the proper townauthorities as a sole proprietorship. To protect myself and mybusiness name from being copied and altered, do I have toregister any and all variations of the name? And is this doneseparately or is it done under the one application? ... Is thiswhat I need to do in order to stop anyone from using a variationof my business name? And can my business name betrademarked along with its variations?"This question (an extract from an email I received from a newsubscriber during the week) is a good illustration of how confusingthe purpose of and difference between business names andtrademarks can be for small business and others without readyaccess to an army of lawyers to lead them through the maze.Add your domain name to the mix and it becomes as clear asmud.In this article, we'll look at what business names, trademarksand domain names are (and aren't), what you can and needto do to protect them and issues to think about when decidingupon what to choose for your business and domain names andwhether trademark protection is appropriate (or even possible).YOUR BUSINESS NAMEIf you're going to conduct your business under a "fictitious"name, i.e., one other than its legal name, you will need to registerthe fictitious name with the appropriate government agencyin your state. This usually means your local county recorder'soffice but, depending on where you live, it may mean yourstate's Secretary of State Office. In countries other than theU.S., the appropriate body may be some sort of governmentDepartment of Small Business.So what's your "legal" name? If you're conducting businessas a sole proprietorship, your legal name is your name, i.e.Fred Smith. If you're any sort of other legal entity such asa corporation, limited liability company, limited partnershipetc., the legal name of your business is the name of yourcorporation, company, or limited partnership.If you conduct business under your own name or that ofyour corporation, limited liability company or limitedpartnership, you do NOT need to register a fictitious businessname with the State because you are not conductingbusiness under a fictitious name, you are conducting itunder your business's legal name.=> Legal Purpose of a Fictitious Business NameThe reason you must register a fictitious business nameto operate a business under a name other than yourbusiness's legal name is to protect the consuming public -those members of the public who come in contact with yourbusiness - as well as other parties such as suppliers.The purpose of registration is so that those who deal with yourbusiness can search for and identify the person(s) "behind" thename. As a fictitious business name is not a legal entity, itdoes not have contractual capacity (i.e. it cannot enter intocontracts in its own name). A consumer wanting to do businesswith your business needs to be able to verify that the person withwhom he or she is contracting has authority to enter into thecontract as the business entity. By searching the fictitiousbusiness names register, the consumer can find out who is"behind" the business, as that is the party with whom he or shewill be contracting (and, sometimes, suing if the transactiongoes bad!).Example: Alfreda Smith conducts her florist business under theregistered fictitious business name, "Blooming Right". FloristSupplies, Inc. wants to enter into a contract with Blooming Rightto supply Blooming Right's stock of tulips. As Blooming Rightis not a legal entity and only a DBA ("doing business as", anotherterm for a fictitious business name), Blooming Right does not havelegal capacity to enter into the supply contract with FloristSupplies, Inc.. (Florist Supplies, Inc., of course, being acorporation - as evidenced by the "Inc." - is a legal entity, andtherefore has contractual capacity.) For this reason, FloristSupplies, Inc. will only be prepared to contract with Alfreda Smith,the legal entity behind Blooming Right. Florist Supplies, Inc.identifies the legal entity with contractual capacity by searchingthe fictitious business names register. Accordingly, the supplycontract 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 bankaccount for your business unless and until your fictitious businessname is registered with the state.Just because you've registered your business name in your countydoesn't mean that someone else can't register the same businessname in another county. Registration is only designed to allowpeople who deal with your business to identify you as the personbehind that particular business. It doesn't give you exclusive useof that name for all purposes in all areas. For this reason, if yourbusiness name is also your business's "brand", you should alsoregister it as a trademark, if possible.TRADEMARKSAs is evident from the purpose of registering a fictitious businessname, a business name is NOT a trademark and a registeredbusiness name will generally NOT operate to protect the namefrom use by others (except as an identical or deceptively similarbusiness name in the same county). So how do you protect yourbusiness's "name" if it also identifies and distinguishes the sourceof your goods or services from those of your competitors'? Theanswer is federal trademark registration. (Although you can alsoregister trademarks at the state level, state registration confers onlylimited benefits and should be considered only if federal registrationis not possible).=> What is a Trademark?As suggested above, a trademark is either "a word, phrase,symbol or design, or combination of words, phrases, symbolsor designs, which identifies and distinguishes the source ofthe 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 is the same thing except it relates to thesource of a service rather than a product.=> Registration Not RequiredA trademark (or service mark) does not need to be registeredto attain status as a mark i.e. unregistered trademarks arerecognized by the common law. If you have used a distinctivetrademark (that you own) in commerce, then you probably havea common law trademark already.But registration confers benefits not available if you rely only onyour common law trademark rights, such as the presumption thatyou are the owner of the mark for the goods and services specifiedin the registration and the entitlement to use the mark nationwide.Absent federal registration, you would have to prove these things incourt as preliminary questions of fact. Imagine trying to satisfy acourt that you are entitled to exclusive nationwide use of the markif you've only been using the mark in two states. Other benefits offederal registration include: (a) the fact that registration acts asconstructive notice of your claim to the mark; (b) federal courtjurisdiction can be invoked; and (c) registration can be used as abasis for obtaining registration in other countries.=> What Can Be Trademarked?It may be easier to answer this question by looking first at whatcannot be trademarked. The U.S. Patent and Trademark Office(PTO) won't allow you to register a mark that is not distinctive(discussed below); that is already in use or that contains namesof living persons without their consent; the United States flag;other federal and local government insignia; name or likeness ofa deceased U.S. President without the widow's consent; wordsor symbols that disparage living or deceased persons, institutions,beliefs or national symbols and marks that are judged immoral,deceptive or scandalous.=> DistinctivenessAs a general rule, a trademark must be distinctive in orderto be accepted for registration. This is an enormously complexissue in trademark law and beyond the scope of this article.But for our purposes, just keep in mind that a mark that is inordinary or common usage in the community will not becapable of registration because no one person can be saidto be the "owner".For example, let's say your business is selling still life paintings.You would have trouble registering "Still Life" as a trademarkbecause it is a term in common usage and has a general meaningin the community. (Note though that certain types of marks whilenot distinctive YET may become so in the future, i.e. they arecapable of acquiring a secondary meaning. Such marks may beeligible for registration and limited protection on the supplementaltrademark register. For more on this, consult your attorney.*)(On the other hand, you may well be able to register the nameStill Life as your fictitious business name provided the same or adeceptively similar name is not already registered in your county.)In order to maximize the chances of your trademark beingaccepted for registration, therefore, try to come up with a"coined" or "fanciful" name. The example often given bytrademark lawyers of a particularly successful coined nameis Kodak. It's a name that means nothing apart from itsassociation with cameras and now expanded lines ofproducts but is immediately identifiable by anyone who seesit as a trademark of the Eastman Kodak company.So, the more novel, unique and fanciful the name, the morelikely you will be able to register it federally.DOMAIN NAMESSo, how does your domain name figure into all of this? Inparticular, what is the interrelationship between registeredtrademarks and domain names?=> Domain Names VS. Trademarks : David VS. GoliathAs a general rule, as the law presently stands, it is*possible* to register any domain name that isn't alreadytaken without regard to whether that name is a trademarkowned by a third party. *But do so at your peril*. Courts areincreasingly siding with trademark owners against domainname holders even when the domain name holder acquiredthe domain name with perfectly innocent intentions, i.e. withno intention of infringing on the trademark or holding it forransom (cybersquatting).=> Domain Names AS TrademarksLet's say that the domain name you want to use is notalready a trademark. Can you register it as a trademark?Depends. Maybe.A distinctive, coined domain name may well be capable oftrademark registration for the reasons discussed above.An example is my own domain, ahbbo.com. The word "ahbbo"has no common, ordinary meaning and so would most likely becapable of being registered as a federal trademark. If I tried toregister the trademark "A Home-Based Business Online"I would have trouble even though I own that domain namebecause the words are, in one variation or another, incommon, ordinary usage.To be registrable, however, the domain name must act asa source identifier for the product or service offered by thebusiness (simply because ANY trademark must identify anddistinguish the source of the product or service), andnot merely act as an address used to access a website.SUMMING UPLet's go back now and answer the original question:"... I'd like to register my business name with the proper townauthorities as a sole proprietorship. To protect myself and mybusiness name from being copied and altered, do I have toregister any and all variations of the name? And is this doneseparately or is it done under the one application? ... Is thiswhat I need to do in order to stop anyone from using a variationof my business name? And can my business name betrademarked along with its variations?"=> "To protect myself and my business name from beingcopied and altered, do I have to register any and all variationsof the name?"No. The question misconceives the function and effect of afictitious busness name. The only function of the registeredbusiness name is to allow the consuming public and others,such as suppliers, to ascertain the legal entity behind thefictitious business name. It is not the business's name thatrequires protection from being copied and altered, it is thebusiness's trademark(s). If you are looking to establish a "brand"with your business name, make sure the name is the same asyour trademarks and register your trademarks.=> "Do I have to register any and all variations of the name?"This was asked in the context of the business name. For thereason just given, the answer is no. But for the purposes ofour trademark analysis, let's reframe the question. Is itnecessary to register any and all variations of the trademark?No. Once you have federal trademark protection for your mark,the trademark examiner will (in theory, at least) not allowanyone else to register a mark that is identical or deceptivelysimilar to your mark. Article Tags: From Being Copied, Fictitious Business Name, Business Name, Sole Proprietorship, Protect Myself, Name From, From Being, Being Copied, Business Names, Domain Name, Domain Names, Business Under, Legal Name, Legal Entity, Fictitious Businessname, Fictitious Business, Contractual Capacity, Enter Into, Blooming Right, Florist Supplies, Federal Trademark, Would Have