Incorporation Does Not Guarantee a Trademark

Entrepreneurs who are interested in protecting their startup’s trademarks should be aware that merely incorporating their company under the name they wish to have as a trademark does not necessarily mean that name is clear for a trademark. When you register a company with the state secretary, all the office is concerned with in regards to the company name is whether another company is registered with the state secretary under the same name. However, because there are fifty states, there could be fifty companies in the U.S. with the same name. That also does not include sole proprietorships, which normally only register at the municipal level. Therefore, while you might be able to incorporate under a particular name, someone else may have trademark rights to that name. Of course, two companies may hold rights to the same trademark — the famous example is of Apple Records, the Beatles’ record company, and Apple, the computer/consumer electronics company. Both companies use the “Apple” name in connection with a logo of an apple. Apple Records originally sued Apple for trademark infringement. Apple countered that no infringement was occurring, since the two companies operated in different industries. After several years of protracted litigation, the two companies ultimately settled by agreeing to respect each other’s trademarks as long as Apple Records did not enter the computer industry, and Apple did not enter the music industry (of course, when Apple launched the iPod and iTunes in 2001, it set off another round of conflict that lasted several years!) Trademarks can also be limited by geography, so that a local or state-wide business may only be able to claim a trademark within those boundaries. So before investing time and goodwill into a particular name, it is important to see if another company may have trademark rights to the name. Law firms and search companies can provide reports that identify trademark registrations, domain name registrations, company registrations, etc. However, if spending money on a search is not an option, even performing a thorough internet search may be able to give you a good idea of whether there are other users of the name, and whether you might have a conflicting trademark use.

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