Registering your company name (as a trademark)
A company cannot be founded without having an appropriate name. If the name happens to have brand potential, it quickly gains popularity and will be known for its impressive quality, so it makes sense to protect it. By registering your company name as a trademark, you can be sure that you’re able to retain the exclusive rights of your brand.
There are three ways in which a business can be registered: sole trader, limited company, or partnership. A sole trader business is easier to set up, but the downside is that you’re held responsible for your business’ debts if any should occur. A limited company means that its finances are separate from your personal finances, but you will have more management and reporting tasks to care of, although you could always hire an accountant to help out with this. Partnerships are a good way for two or more people to run a business together. This is where you would all share responsibility for your business’ debts as well as accounting responsibilities.
It is important to understand the differences between these various options, how to obtain them, and how much they cost.
Registering a company name
Before you get your business up and running, the first step is to register your company name. If you wish to start your business as a limited company you need to be sure that your name isn’t the same or similar to an existing business otherwise you will have to change it. The name must end in 'Limited' or 'Ltd'. 'Cyfyngedig' and 'Cyf' are also accepted if you registered the company in Wales.
If you’re a sole trader, you can trade under your own name, or choose another name in order to differentiate the business from your person. Your name and business name must be included on all official paperwork and invoices. The name cannot include Ltd, limited, limited liability partnership, LLP, public limited company, or plc. There are strict rules on the names and words you can actually use for your sole trader business.
When it comes to partnerships, just like with sole trading, you can trade using your own names, or alternatively choose another name. You also don’t need to register your name, but you must ensure you use all the partners’ names and the business name on all official documents such as invoices.
When considering which business name to register, you may also want to ensure that a corresponding domain name is available for any potential online presence you may need. To ensure that your brand is protected, you should register your trademark.
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The term ‘trademark’ incorporates both a traditional trademark, which represents a good and a service mark i.e. a service. It is typically names, slogans, logo designs, or symbols that differentiate your good or service from those of your competition. This means that you can trademark the same company name that you’ve registered and you also have the choice to select a slogan, an image, or the name of a popular product or service that your company offers. Trademarks usually last for as long as the owner continues to conduct business under them, and are indicators of intellectual property.
Registering a trademark establishes common law rights for your company. These rights include the exclusive right to use the trademark (with its corresponding goods and services) nationwide and a legal presumption that you are the owner of the name, slogan, or image. However, these rights can be revoked if someone else is able to prove that their usage predates yours. This is why it’s so important to research your trademark extensively before applying.
Once you’ve registered your trademark, it means that you can:
- Take legal action against anyone who uses your brand without your permission.
- Put the ® symbol next to your brand to show that it cannot be used by anyone else.
- Sell and license your brand.
The whole process of registration takes about four months as long as there are no objections. This trademark then lasts for ten years. If your trademark is registered in the UK, it means that your brand is only protected in the UK. If you want your brand to be protected overseas, you will have to research the options for EU and international trade marks.
Is my trademark protected in a foreign country?
If you decide to use your trademark outside the UK, you need to apply to the trademark office in each respective country. To facilitate the process, European and international application systems also exist, which cover many countries and offer these benefits:
- Less paperwork
- Lower agents’ costs
- Faster results
- Simple application
A prerequisite is to have a base application or registration in the UK before you apply for an international trademark.
You can also apply to register in any of the countries that have joined the Madrid Protocol. To do this, you simply have to file an application with the International Bureau of the World Property Intellectual Organization (WIPO) via the USPTO, but it must be identical to your UK trademark application. As of late 2017, there are 100 members of the Madrid Union, covering 116 countries, which means your trademark would be protected in all of them. Be aware that you can only apply for a single mark when it comes to the international system as it doesn’t allow for several marks, which is possible in the UK.
You should consider registering transliterations in case the country in which you want to register uses a different alphabet. Foreign entities may trademark the name of your company written in their alphabet to make a transliteration of your trademark, which they could then sneakily trademark themselves. Already registering the transliteration would prevent this from happening.
Not all names can be trademarked
If you’re in the donut making business, you might have come up with the great idea of trying to trademark donuts as your name and maybe even attempt to secure donuts.co.uk for yourself. Unfortunately, you won’t have any luck, since the law doesn’t allow a company to claim a generic term as its proprietary mark. So terms like 'chairs', 'dogs', 'computer', etc. are out of the question. Everyone has the right to be able to use these words when describing their products or services, which is why they can’t be trademarked.
A case study is 'Hotels.com' who believed they could trademark the name, since the dot com suffix took away the generic-ness of the term. The Federal Circuit Court of Appeals in the US turned down their application on the grounds that adding the suffix doesn’t change anything, since it’s still seen as the word 'hotels'.
An interesting case is that of 'Apple Inc', which is allowed to do business under the fruity name since it trades in the hardware and software sector, and not in the food sector.
Trademarks that have become generic and genericised
Even though you have legally protected a trademark, it doesn’t necessarily mean it’s protected forever. It’s rare, but has happened that some trademarks, which have become genericised, have lost their legal status. This means that the names have become generic terms and are being used to generalise all similar products. For example, Thermos was a name trademarked by Thermos GmbH, but now this word is used to refer to all vacuum flasks, whether manufactured by the Thermos GmbH or not. Here are some other examples:
- Flip phone
There are many different options for registering your business name and protecting your company. Whether you decide to simply register locally under a DBA, register for a state trademark, or apply for federal trademark registration, it’s important to ensure you understand exactly how the process works, where to send applications, and how to conduct proper research. If you are unsure of which path to take, consulting an attorney can be a useful first step before diving headfirst into business. Alternatively, there are several companies that can help you register a domain name or trademark for a fixed fee.