A common question for start-up businesses is how to establish a BRAND. In a fast-moving economy, every business tries to establish a catchy name that customers may use to identify a product as the next must have. In 2012, do you want your customers telling their friends about this great, new, shiny micro-widget that allows you to beam data wirelessly and sync with your online profile, or referring to it as the “iBamZoomGadget™”?
A trademark is anything (a word, graphic, slogan, jingle, color, sound, or even a smell) that identifies, to the world, a business as the source of a particular brand of goods, and distinguishes it from all others. Our Intellectual Property practice group would chastise me if I failed to take this opportunity to emphasize that registering a trademark with the United States Patent and Trademark Office (USPTO) is an important step to ensuring the broadest possible protection for a trademark. What good is a brand if you do not take the necessary steps to protect it? You can pour your blood, sweat, and tears into establishing a brand, but if you do not register the trademark, you will have fewer remedies against another person that attempts to use your trademark or a confusingly similar one.
In comparison, an assumed business name (or doing business as or dba) is a rather meager concept. Specifically, it is a creature of a statute that codifies the basic policy that the public, and especially creditors, should be able to identify a business by searching some public database and finding an official contact person and mailing address for the business. That way, if Bob’s Anti-Ant Shack messes up a fumigation job, the customer can look up Bob’s Anti-Ant Shack online and determine that it is actually an assumed business name for ACME Chemical, Inc. and get the name and address where the customer may contact ACME Chemical, Inc.
But an assumed business name is not a trademark, and filing a Certificate of Assumed or Fictitious Business Name (the formal name for a dba filing) with the state does not afford you the same protection as a trademark. The assumed business name filing is merely a public notice filing, and the state can and will accept multiple assumed business name filings for the same name. Contrast this with the trademark registration procedure, where the application may be rejected by an examiner in the trademark office if it is confusingly similar to a previously registered trademark.
The filing of an assumed business name is still an important and necessary step if you are ACME Chemical, Inc. and you want to do business as Bob’s Anti-Ant Shack. In fact, it is required by Idaho statute, but please do not confuse it with a trademark because they are very different and function differently. If you would like assistance with examining your use of assumed business names or trademarks, please feel free to contact a member of our Business Group or call 208.344.6000.