Robert B. Rosenstein 2016-07-21 05:31:41
More than once I have had a new client visit my office seeking assistance because they discovered that someone else is using their business name or their business logo. In most instances, the client has incorporated the business, but has done nothing else to protect their name. There are various legal methods for protecting a business name, logo, and other works that will enhance the value of a business. Just creating a corporation or a limited liability company may not afford adequate protection against others using the name. The mere fact of forming a legal entity may not provide adequate protection of the name (it may already be owned another person or entity), nor does it necessarily prevent somebody else from using a similar name in business. Registration and protection of a name is usually looked at on three levels. The first, is done in the county in which the business is operated by the filing of a fictitious business name (normally referred to as a DBA), and requires the individual (which may be a business entity such as a corporation) to file certain documents with the County Recorder, after publishing the fictitious name in a local paper. Once done, and providing that no one else has rights to the name, the business will “own” such name relating to business operations in the county. If someone was to violate such ownership, the business would then be in a position to obtain an injunction to prevent the name from being used by such other business, and may even be entitled to recover damages. This method works for a business that will only be operating in one county, but not for a business that will expand into other counties or another state. The second level in protecting a name is by filing a service mark with the Secretary of State in the State of California. This inexpensive procedure provides protection of the business name or logo in California, as long as the name or logo has not been protected by another entity through a Federal method. This protection applies to California only, and to the extent that such name would be used outside of California, it may not be protected. If the business expects to conduct business outside of the State of California, upon commencement of interstate commerce (activity between two different states), then it is recommended that the name, logo, or other property be protected on the Federal level by the filing of a federal trademark or copyright. This is a much longer process (usually 6 months to a year). In some cases, a proposed mark may be “too generic” at the initial stage to be considered for a copyright or trademark, however, there is a “secondary” registration that is allowed, which does not afford the user absolute protection, but after a period of time, may be moved to a primary registration. If the business name under which a business operates has not already been protected, it is recommended that a business attorney be consulted Robert B. Rosenstein is an experienced litigation attorney who also is involved in providing business and estate planning assistance. Robert B. Rosenstein has over 35 years of experience in assisting clients with over 20 years in Riverside County. Mr. Rosenstein can be reached at Rosenstein & Associates (951) 296-3888, or visit www.thetemeculalawfirm.com
Published by Moreno Valley Business Journal. View All Articles.
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