Even savvy attorneys get confused between a corporate name and a trademark. We thought we would lend a helping hand and clarify the differences.
Let’s start with corporate names. A corporate name is the name of the actual business entity – the name that gets registered with the Secretary of State at the time of incorporation. This is the company’s “official” name. Incorporating with a Secretary of State gives the company the right to use its name for official purposes, such as banking, on legal documents, and as a tax payer.
A trademark, on the other hand, is a particular word, phrase, symbol, design, or a combination thereof (such as a logo) that is the name shown to the public – the public-facing name the company uses in the stream of commerce to identify its goods or services. Trademark registrations are applied for through the United States Patent and Trademark Office (for federal registration), state offices (for state registration), or internationally.
An easy illustration of the difference between corporate names and trademarks is TJ Maxx. TJ Maxx is a trademark for retail department store services, but that is not its corporate name. The corporate name is TJX Operating Companies, Inc., which most of us do not recognize.
A common misconception – among both business owners and lawyers – is that when a Secretary of State allows a company to incorporate with a particular name, the company thereby has permission to use that corporate name as a trademark. The truth is that when incorporation is allowed with a certain name, this does not necessarily mean use of that corporate name does not infringe someone else’s trademark.
Following the example above, let’s say you or your client wanted to incorporate the name TJ Maximum, Inc. A secretary of state is likely to allow that. However, if you or your client began using that name in connection with retail clothing, the owner of the TJ Maxx trademark would likely have a strong trademark infringement claim. The fact that a Secretary of State allowed incorporation with the name TJ Maximum, Inc. is not a defense to trademark infringement.
The bottom line is that corporate names and trademarks are two different things and shouldn’t be confused. If you have any questions, please contact David Lilenfeld at David@lilenfeldpc.com or Sonia Lakhany at Sonia@lilenfeldpc.com.