Legal Issues in Parking Area Sweeping

Your Sweeping Company's Name

Incorporation alone may not fully protect it.

by Sirote & Permutt, P.C.

One of the most commonly held misconceptions among our business and corporate clients concerns the protection of their corporate, or trade, name. Many people are under the mistaken impression that by incorporating under a certain name, or reserving a company name with their Secretary of State, that the name is then fully protected against any and all forms of possible infringement by competitors. Nothing could be further from the truth. The mistake is understandable, though, because of the close relationship among corporate names, trade names and trademarks.

A corporate name indicates that a company is incorporated under state law. It identifies the company as a corporation and prohibits other companies from incorporating under that name. In many states, however, reservation or registration of a corporate name does not prevent a partnership or other unincorporated entity from doing business under that name.

First, some definitions: A trade name can be a name, symbol, design or drawing which is used to identify your company or business and to distinguish it from someone else's company or business. A trademark, on the other hand, is any word, name, symbol, design or drawing that is used to identify goods or products and/or to distinguish them from the goods or products of others. (A servicemark is a mark used to distinguish "services," as opposed to goods or products. In this article, the term "trademarks" will also encompass servicemarks.)

For example, "Acme Company, Inc." may be a corporate entity which operates under the trade name of "ACME Sweeping Company." An example of its trademark (service mark, in this instance) might be the words "ACME Sweepers" when they are placed on its brochures and the post-and-stick notes it uses to alert clients that their location had been swept the previous night.

The distinctions between corporate names, trade names and trade or servicemarks are fine ones and depend upon how the names or marks are used. A corporate or trade name, standing alone, cannot be registered as a trademark and, though there may be a way for you to register your trade name in your state, there is currently no federal statutes providing for such registration. But, if your corporate or trade name, or a portion of them, is used on goods or products to identify and distinguish them, as opposed to simply identifying your company, then it may qualify for registration as a trademark.

If your trademark is a component of the name which you have already incorporated under with your Secretary of State's office, first check with them to see whether this also will provide protection as a trademark under the law of your state. Although in some states it may, you will probably find that to protect your trademark -- as opposed to your corporate name -- you will have to file a separate registration form. Fortunately, at the state level this procedure is usually relatively simple and inexpensive. Once done, it will provide certain statutory benefits and remedies that you wouldn't otherwise have.

If you are doing business in several states, then you will find it somewhat more complex and expensive to register your trademark with the Federal Patent and Trademark Office. This process does offer extremely valuable rights on a nationwide basis, however. It provides national protection, even if you are using your mark in only two or three states, and also gives you access to the federal court system in any infringement action. You also gain the right to recover lost profits, treble damages and, possibly, attorneys' fees.

National protection in a trademark now accrues before actual use of the mark, because companies can now register their "intent to use" a particular mark. Unfortunately, to qualify you must have a bona-fide intent to use your trademark in interstate commerce. When you then begin putting the "TM" (or "SM" in the case of servicemarks) after these filed trademark names or slogans, you will have priority over any subsequent users.

To ensure protection of your valuable trademark (or servicemark) names, you would do well to contact an attorney familiar with that area of the law. With the help of an expert, it is relatively easy and inexpensive to secure your rights in this area.

© 2005 - 2012
World Sweeper
All rights reserved.

Parking Area Sweeping Contents

Parking/Legal

Site Map / Table of Contents