Business Names and Trademarks FAQs
A business name is the name under which a company does business. A trademark is any word, symbol, or device that identifies and distinguishes the source of one party’s goods or services from those of others.
It is recommended that you conduct a “clearance search” before starting to use your business name. Clearance searches are used to verify whether there are any potentially similar or conflicting prior rights in the marketplace. There are databases available for clearance searches (some publicly accessible, some for a fee) to assess if another person/business is using a name or mark similar to your business name, for similar products or services.
Yes, but . . . While registering a business name with the North Dakota Secretary of State is required to be able to do business under a particular name within the state, this registration does not provide assurances that the registered business name is not in conflict with the trademark rights of other parties. Other parties may already be using similar names or trademarks in the marketplace which may take precedence over your rights to use a particular business name. For this reason, it is recommended that you conduct clearance searches before registering and using a business name.
Not necessarily. If another business has been using a name or trademark similar to your business name, for similar products or services, you may be infringing that trademark and could be prevented from using your business name. Again, the risk can be reduced by conducting clearance searches prior to registering and using a business name.
No. The regulation of business name approval is done state by state. Therefore, check the requirements of the other states in which you intend to do business to determine what you will need to do to achieve authorization in those states.
Possibly. If your business name satisfies the standards for a trademark, and is used in the manner of a mark for your products or services, you may be able to establish trademark rights. You may want to discuss the details on how to claim trademark rights with an attorney who specializes in trademarks.
If you would like to prevent others from using your business name to sell similar products and services, you may want to consider using your business name as a trademark. An attorney may be able to advise you on the advantages of obtaining trademark rights.
Trademark rights in the United States are typically established by proper use of a mark. These rights can be enhanced by seeking trademark registrations through the United States Patent and Trademark Office (USPTO) or through a Secretary of State’s office. Discuss the details for trademark protection and how to achieve it with an attorney who specializes in trademarks.
The Secretary of State does not examine the business name application to verify if it conflicts with federal trademark registrations, so there will be no notification of such a conflict. In North Dakota, the Secretary of State’s office will consider whether the proposed name is deceptively similar to a previously registered business name or trademark in North Dakota, and will notify the applicant if there is a conflict.
Not necessarily. If a third party has established trademark rights through use in North Dakota, even though that party has not registered its mark with this state or federally, this third party may be able to show rights superior to your business name or trademark and get a court to prohibit your use. Such prior use may be detected through a clearance search.
In North Dakota, a “dba” name is considered a trade name or a fictitious partnership name, depending on the entity type, and must be registered with the Secretary of State.
Maybe not. Trademark laws also protect “common law” rights in unregistered trademarks, so a third party may have acquired such rights through continued use of a trademark even without having registered the mark.
Unfortunately, there is no guarantee; however, you can significantly reduce the risk of conflict if you conduct clearance searches prior to adopting and using your business name. This will provide you with a good overview of the existing rights in the marketplace and will assist you to make the right decisions before investing in your business name.
The rights of business name owners and trademark owners are subject to many factors and nuances. The resources for clearing a business name or a trademark are many and of differing comprehensiveness and value. Business owners should consider discussing these matters with their business or trademark attorney to get a better understanding of their rights and exposures.