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A "dba" Is Not a Trademark (132 hits)

The acronym “dba” stands for the phrase “doing business as”. A “dba” is a formal declaration that a person or other entity is conducting business under a certain name. When a new business starts, one of the first things the business owner does is secure a “dba” registration for the business name. A corporation is an entity that is granted a certificate recognizing the corporation as a separate legal entity that conducts business and has its own rights, privileges, and liabilities.
A certificate of incorporation and a “dba” have the same general purpose in that they formally establish the name under which an entity is organized and conducts business. Both indentify trade names (the name of the business). The “dba” is typically issued by counties and is applicable at the county level. A certificate of incorporation is issued by a state and is applicable at the state level.
A trademark is a word, phrase, slogan, acronym, symbol, design or color that identifies and distinguishes one company’s product from products marketed by other companies. The trademark identifies the source of the product. For example, the NIKE swoosh symbol is a trademark indentifying a product from NIKE Corporation. A properly protected trademark enables the trademark owner to prohibit others from using the same or a similar trademark when selling products in competition with the trademark owner’s product.
Confusion about the scope of a “dba” typically occurs when a first business gets a “dba” for a particular name. The first business later learns of a second business that is using the same name. The first business owner also learns that they cannot enforce their “dba” to prohibit the second business from using that name.
Many people confuse a trade name and a trademark. For example, Procter and Gamble is the name of a company, which is the trade name. Tide and Crest are trademarks that identify products made and distributed by Procter and Gamble. General Motors is the name of a company. Buick and Chevrolet are trademarks for products made by General motors.
Although there is a legal distinction between a trademark and a trade name, in many instances and particularly for small businesses, the trademark and trade name will be the same. For example, there can be a business named “Mimic Inc.,” which provides copy services and copy supplies. The trademark for the copy services and supplies could also be “Mimic.” The word “Mimic” functions as a trademark and a trade name.
The primary difference between a trademark and a trade name is that the owner of a trademark can legally enforce the trademark in a court of law to prevent others from using that trademark. A trade name (“dba”) does not give the owner of that name the right to use that name as the trademark for a product or to enforce “dba” for that name against someone else. A second difference between a trademark and trade name is that there are separate processes for acquiring each. When one applies for a trade name, the application is done by filing articles of incorporation with the Secretary of State’s Office. At the local level, a person can apply for a “dba” with the county. A trademark is usually acquired through filing a federal trademark application with the United States Patent and Trademark Office (USPTO). A federal trademark registration provides protection for the entire United States and all U. S. territories. It is also possible to acquire a state trademark registration through the Secretary of State Office. A state trademark registration only covers the state that issued the registration.
In summary, a trade name is not a replacement for obtaining a trademark. In addition, a “dba” does not have the legal weight and force that accompanies a registered trademark.
For more information visit www.dwalkerlaw.net and www.youtube.com/user/godyideas.

Posted By: Darcell Walker
Monday, January 25th 2010 at 9:27PM
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