In case you hadn’t heard: the Trademark Trial and Appeals Board (TTAB, an administrative body affiliated with the trademark office that hears all appeals directly from the United States Trademark Office regarding the decisions of trademark examiners) dropped a real whopper of an opinion yesterday when it concluded that a series of trademarks containing the word “REDSKINS” must be cancelled because the trademark was disparaging to Native Americans at the time it was registered. I have a few issues with how the press has been covering this story along with some additional comments on the general soundness of the opinion (although a decision this substantial will surely be appealed by the Redskins). So here is my take.
In honor of Flag Day, I thought I would put a little trademark lawyer spin on my homage to Old Glory.
You might see many trademarks or logos that incorporate elements of the American flag or elements of other national flags. Because airlines are the easiest types of examples to think of (because some airlines typically brand themselves as the namesake carrier for a particular country), I will use airplane livery as an example. American Airlines and U.S. Airways (about to be merged into one airline, if you hadn’t heard) sport elements of the red, white, and blue:
Lately I’ve been bombarded with recurring questions about whether a business name (or a trade name) suffices as a trademark. Although I feel like an economist when I say this, the answer is “yes” and “no”.
First to clear the air, I am going to run-through a definition of each type of designation, in a Merriam-Webster-esque style:
Trade Name: very simply, a trade name is the name or designation attached to a business. Many states allow you to register a trade name. The purpose of registering the trade name is, of course, to prevent other people/entities from adopting the same name and using it to steal customers from the true entity. Trade names do not afford any brand name protection or even provide you with unlimited rights to use the name (more on this later).
Business Name: a business name is the designation that you provide to the Secretary of State (or the Corporation Commission, if in Arizona) when you formally establish a business. There are certain naming requirements (such as including the word “Corp” or “LLC”, depending on the underlying entity), but the business name by itself does not have to be distinctive in order to be approved. Generally speaking, the name of the business can be similar to others (i.e. “Assured Home Inspections” vs. “Assured Home Inspectors”), there just can’t be direct overlap between two names.