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How can I prevent someone from using my trade name?

Is your trade name, the name of your company, protected across the US?  What is a trademark and is this something that is important for your business?  Lets say you have been in a business for some time and find out there is another business by your exact name name doing what you do, perhaps in a different state? The good and the bad of the intent is that anyone doing anything can make a website or internet listing that will come up when the name is searched, and you find out that you are not the only one with the interesting name you "made up." Filing for a trademark can give you that edge you need. A federally registered trademark covers the whole United States. Once registered you will have superior rights to send out your cease and desist letter to the other business. While there are rare situations that can defeat a trademark (for example the other business has been around many more years that yours and had an established reputation in at least it's local community, there are what's "called common law rights." But again with the internet there is generally no more "local community" for businesses that gain the majority of their business from the internet. What if you don't have a trademark, what can you do. There are no cross referenced by state for corporate names for example, so it is possible that there can be 50 different companies all with the same name one in every state. Even the internet has conflicting URLs with the .com and .net. It is difficult to claim ownership to the main name absent the extension. Trademark law and conflicting names is tricky. Call me today for a consultation on your specific situation.

Can Anything Be Trademarked?

Can you trademark anything for your business?  Your name, slogan or Logo must be used in interstate commerce. These days just having a website is in most cases enough. Descriptive phrases are generally not afforded principal trademark registration status, but in most cases, the United States Patent and Trademark Office will allow a descriptive phrase to be registered on the Supplemental Register, which still affords you most of the rights as on the Principal register, but there are subtle differences. You can still use the ® next to your name, slogan or logo, etc, which is what you want to show the world that you have the trademark registration. When submitting an application, you may be denied if your name, slogan, logo etc is similar to another registration, "confusingly similar" which is pretty much a subjective opinion of the examiner to whom your file is assigned. A California franchise attorney with trademark experience can help argue the points in your favor to help persuade the examiner, but if it is denied, there is an appeal process.

Can I get a Trademark on a Name I am Not Using yet?

Yes and No. The United States Patent and Trademark Office has an application called an "Intent to Use" application which gets you on file before you actually start using the name, slogan or logo, but you eventually do have to start using the name, slogan or logo and submit proof of the use, to have your application converted to an Actual Use application and processed to registration. Generally you have about a year but an experienced California franchise attorney can seek several successive 6 month extensions. There are more fees associated with an Intent to Use application because there are more processes it has to go through. If you are close to actual use in interstate commerce (your website is almost done and you are advertising services through the site), that will be interstate commerce (Actual Use). The timeframe is significantly longer with an Intent to Use application as well. But it is a way to get your name of record so to speak, and potentially prevent others ultimately from registering the same name.

Do I Need a Trademark to Franchise My Business

In general yes, since the California Franchise definition of a franchise includes payment for your trademark used in connection with your system or in connection with a marketing plan. If you have a name or a logo that you want to be part of the system you are going to license as a franchise then you ultimately need to and should have it trademarked. This affords you the protection of no one defeating YOUR use of the name and your right to license it. Having the federally registered trademark also gives you the right to determine under what conditions you will license (franchise) the name. This is why franchise agreements seem so one sided in favor of the franchisor. That's because it is the franchisor's property, the trademark, that needs to be displayed in accordance with exact specifications and conditions so as to promote the good will of the brand as a whole.

What Is a Trademark and Is a Trademark expensive?

A trademark is a federal registration of a name, slogan, logo or design that, when issued, gives you what's called "infringement rights"--a set of rights to be able to prevent almost all others in the entire country from using the same name, slogan, logo or design in a similar manner or any confusingly similar manner. In addition, a trademark registration is an asset, which can be sold or transferred, used as collateral, or , handed down to your heirs. A California Trademark registration is not the same as a federal trademark registration in the United States Patent and Trademark Office in Washington D.C. and does not afford you the same rights as a federal registration. A Trademark need not be expensive to obtain. As an experienced Franchise attorney who deals with trademarks all the time, I can guide you through the options and choices you have for obtaining a federal trademark registration. In many cases the total fees are well less than you would imagine. You may only need a single class of product or service to protect you which can cost as little as $275 filing fee plus preparation of the application and/or search for similar marks. Find out today if your name is a good candidate for trademarking.

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