Trade Name

• Author: Jeffrey Lehman, Shirelle Phelps

Page 68

Names or designations used by companies to identify themselves and distinguish their businesses from others in the same field.

Trade names are used by profit and non-profit entities, political and religious organizations, industry and agriculture, manufacturers and producers, wholesalers and retailers, sole proprietorships and joint ventures, partnerships and corporations, and a host of other business associations. A trade name may be the actual name of a given business or an assumed name under which a business operates and holds itself out to the public.

Trade name regulation derives from the COMMON LAW of UNFAIR COMPETITION. The common law distinguishes between TRADEMARKS and trade names. Trademarks consist of symbols, logos, and other devices that are affixed to goods to signify their authenticity to the public. The common law of trade names encompasses a broader class of INTELLECTUAL PROPERTY interests, including TRADE DRESS and service marks. Trade dress is used by competitors to distinguish their products by visual appearance, including size, shape, and color, while service marks are used by competitors to distinguish their services from each other. Gradually, the law of trade dress and service marks has evolved into separate causes of action, independent from the law of trade name infringement.

To maintain a CAUSE OF ACTION for trade name infringement, a plaintiff must establish that it owned the right to operate its business under a certain name and that the defendant violated this right by use of a deceptively similar name. The right to use a particular trade name ordinarily is established by priority of adoption. In states that require registration of trade names, a business may acquire the rights to a trade name by being the first to file for protection with the appropriate governmental office, usually the SECRETARY OF STATE. In states that do not require registration, a business may acquire the rights to a trade name through public use, which means that the law will afford protection only if it can be demonstrated that a business and its trade name have become inseparable in the public's mind. Under federal law businesses may acquire the rights to a trade name only through regular and continued public use of an individual name. Federal law will not protect trade names that are used sporadically or irregularly.

Once a business has established the right to use a particular trade name, it must then...