By David Kim
When you publicize a business, you are claiming a trademark, whether or not you realize it. That’s because there are two kinds of trademarks. Many businesses officially register their mark as a statutory trademark with the U.S. Patent and Trademark Office (uspto.gov), which entitles a company to use the name in every state. But a common-law trademark is yours once you start using a name, whether or not you register it. Provided it doesn’t infringe on another’s existing mark, it allows you to use the name in your local market or state, and your claim to it grows stronger as your business grows.
A company intending to go national should register its trademark even before it opens its doors. Before filing, do a comprehensive search (in the USPTO’s searchable online database) of other national trademarks and of locally registered and common-law trademarks. (See “Resources” below for trademark searchers.) You are looking for any mark that could be confused with yours in the same line of business or in a connected one.
A registered trademark allows you to force another company using the same or a confusingly close name to change it—but only if the other company adopted the name after yours was registered. A company using the name locally first is free to continue doing so, can limit your entry into that market, and can even object to your application, making the process more expensive.
Even a company that plans to stay local should avoid potential conflicts by confirming that its chosen name hasn’t already been nationally registered, says Jonathan Jennings, a trademark lawyer at the Chicago firm Pattishall, McAuliffe, Newbury, Hilliard & Geraldson.
Two main trademark-search services are CT Corsearch (ctcorsearch.com;; comprehensive search from $605) and Thomson CompuMark (compumark.thomson.com or 800-692-8833; full U.S. searches from $595).