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   What's in a Name?

Trademark lawyers are used to getting telephone calls like this: "I just received a threatening letter from a company charging me with trademark infringement... but I registered that name in my state."

More often than not, the caller has a real problem. There is a great deal of confusion over the legal meaning and significance of "fictitious" and corporate names.

Back in the "old days," two companies with the same name could operate in two different states and never even learn of each other's existence. Today, those same two companies may have Web sites and find they are competing for the same customers nationwide.

To make matters worse, your company is more likely to face a legal trademark challenge today than it was in the past simply because more businesses are operating nationally and coming into contact with each other.

Let's say the two firms are involved in advertising and both are named "A-1 Promotions." One of the owners filed a "Fictitious Name Form" with his state trademark office, which is required when a business uses a name that is different from its legal name. Does that owner get to keep the name?

Contrary to popular misconception: A fictitious name is not a trademark or service mark. It confers no legal right to use the name. Some states, such as Pennsylvania and New Jersey, even carry big warnings on their fictitious name registration forms advising applicants that they receive no trademark rights with the registration.

The purpose of state fictitious and corporate name registrations is to help police and taxation functions. For example, let's say a sole proprietor owns a fleet of trucks carrying a different business name. One of the trucks is involved in an accident that injures several people. The police can track down the owner from the state fictitious name records.

The right to use a fictitious name (sometimes called an "assumed name") may be trumped by a prior business trademark or service mark. Before any name is used, you should have an attorney pre-screen and clear it of any infringement problems.

You don't want to spend a fortune building name recognition and then find out you have to start all over again.


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