A Trade Name May Not Smell So Sweet If It’s Also a Trademark


There are many legal principals behind names of companies and their products and services.  It is common for new businesses to check with the North Carolina Secretary of State to make sure no one else has their name.  This is a good first step, but it is not enough. 

Trade names are registered with the Secretary of State.  All the Secretary of State cares about is one character difference in their database.  If there is a “Berkelhammer Company” registered to me, your company can be Berkelhammer Industries, Inc., or Berkelhammer Company of Wake County or Berkelhammer I Company.

Trade names are the official name of the business, and goods and services are not always sold under the same name as the trade name.

For example “The Proctor and Gamble Company” is a trade name.  There is no Proctor brand detergent or diapers or shampoo, and no Gamble brand tax preparation or haircutting or laundromats.  But Proctor and Gamble sells Tide detergent, Patene shampoo, Bounty paper towels and Duracell batteries among other products.  Tide, Pantene, Bounty and Duracell are trademarks, because they distinguish Proctor and Gamble as the source of those specific detergents, shampoos, paper towels and batteries.

When selecting a company name that will also be used to identify the products or services sold under the name, it is best to conduct a trademark search as well as checking with the Secretary of State.  If your name is likely to cause confusion with an existing brand or trademark registration, you may be infringing someone’s trademark.  It is a terrible waste of startup capital and energy to have to change your branding right out of the gate.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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