Originally published in Law360 on December 03, 2012.
Every business has a name. An LLC and a corporation have names that have been approved and registered by, at least, one secretary of state’s office. For many businesses, these names are also the "brand" through which they advertise and market their products and services. But many companies, despite building an entire business based upon a brand identity, have done nothing to protect their brand identities properly or to ensure that the company names and brands they adopt and use do not infringe upon prior existing names and brands. Following is a primer for every business owner and anyone who works with a company providing products and services to the public explaining why a trademark search is important before any name, mark, slogan, logo or other brand identifier is adopted and used.
A "trademark" is any word, name, symbol or device, or any combination thereof which is used by any person (including formal entities) to identify and distinguish his or her goods from those manufactured or sold by others and to indicate the source of those goods. A "service mark" is used in the same manner as is a trademark except it is used to identify and distinguish the services provided. Sometimes, but not always, a corporate or trade name that is used to identify a business entity is also used as the brand identifier for goods and services provided by that entity. In such a case, the corporate or trade name functions in two capacities: as a trade/corporate name and also as a trademark and/or service mark.
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