Business Names: How do they Work?

What is a Trade Name?

A trade name is the name the business uses for advertising and trade purpose.  In Ohio, a trade name is a name used in business or trade to designate the business of the user and to which the user asserts a right to exclusive use.  An example of a trade name is the use of the name “Sam’s Burger Joint” by a company whose official, registered name is Dahman Restaurants, LLC.  Trade names are names that are generally viewed by the public on signs, on websites, and on advertisements.  It is important to understand that a business’ trade name may be different from its registered name.

 What is a Fictitious Name?

A fictitious name is a name used in business or trade that that the user has not registered or is not entitled to register as a trade name.  If a business is using a trade name that is different from the registered name of its business, it needs to file a fictitious name statement (also known as a d/b/a/ statement, which stands for “doing business as”).  Users of fictitious names are required to file a fictitious name statement with the county because doing so allows the public to know who is actually running the company.  Fictitious name statements are typically registered with the Secretary of State.

So What’s the Difference between a Trade Name, a Trademark, and a Service Mark?

People often confuse trade names with trademarks and service marks.  Many small businesses assume that once they have chosen a business name and registered that name with their state of incorporation, they have unlimited rights to the name in connection with their business.  This is not the case – registering a trade name does not provide any trademark or service mark rights to the registrant at all.

A trademark is any word, name, symbol, or device, or any combination thereof, other than a trade name in its entirety, adopted and used by a business to identify their goods and distinguish them from similar goods made or sold by others.  Trademark rights include the right to use something to identify goods and services and to distinguish them from competitors’ goods and services.

A service mark is any word, name, symbol, or device, or any combination thereof, other than a trade name in its entirety, adopted and used by a person in the sale or advertising of services to identifytheir services and distinguish them from similar services of others.

Normally trademarks appear on products or on their packaging, while service marks appear on advertising for services.  A trade name, on the other hand, is simply the name under which a company does business, not a name for specific products or services.

A trade name can be used as a trademark, to identify its products or services, but only to the extent that it does not infringe upon existing trademarks.  Because trademark infringement is not always obvious, it is easy to get into trouble by using names that are sufficiently similar and likely to cause customer confusion. Having to change your businesses’ name or spend money to correct advertising, or even worse, having to pay for the lost profits of the holder of the registered trademark and just some of the problems that can arise with confusing trade names and trademarks.  If you want to use your trade name to represent your products or businesses, be sure to consult with an attorney, such as Dahman Law, who can help you avoid these problems.