Protecting Your Business Name

Question: I'm forming a new business under a unique name. A friend said I should copyright the name by sending it to the Library of Congress in Washington, DC and in a sealed envelope to myself so there's a record of when it was created. Will that protect me against someone using the same name?

Answer: Your friend's advice gets you nowhere. The protection you need to pursue is a trademark or service mark - a form of relatively low-cost legal protection for this type of "intellectual property."

A trademark is a crucial step to protecting a business name. But it differs greatly from its legal cousins the patent and copyright. Many entrepreneurs confuse patents, trademarks and copyrights. And while there are similarities, they serve different purposes.

Here's the breakdown:

1. According to the U.S. Patent and Trademark Office (USPTO), a trademark is a word, name, symbol, device (or combination of those) used in business to indicate a source of the goods (your business) and to distinguish those goods from those sold by another business. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. In practice, however, the terms are often used interchangeably. The trademark blocks others from using a confusingly similar name, but doesn't prevent anyone from making the same goods or selling the same service under a different name.
   
   
2. A patent for an invention grants a specific legal property right to the inventor - "the right to exclude others from making, using, offering for sale or selling" the same invention.
   
   
3. A copyright is harder to define. It is mainly a protection for authors of original works, including literary, dramatic, musical, artistic and other intellectual works, both published and unpublished.
   Thanks to the Internet, the trademark application process is easily accessible. No business skills or legal knowledge required. And that spells trouble, says Douglas Wolf, a trademark lawyer with Wolf Greenfield, one of the nation's oldest intellectual property law firms. According to Wolf, do-it-yourself trademark filing online - a system run by the USPTO itself - is creating an arsenal of litigation time bombs for business owners.

For example, the application requires that you identify goods or services under specific categories. But misunderstanding these categories and filing too broadly or too narrowly can cause problems later on. "I see basic errors that make me cringe," says Wolf. "Some are fatal to an application the moment it is filed, while others show up later."

Even a simple T-shirt maker can easily take a wrong turn, says Wolf. "Do you file the trademark to cover clothing or shirts or just T-shirts? You need to think about the future, your marketplace and timing."

Trademark filings are more nuanced that many people think, and it may be worth spending $1,000 to $1,500 on a trademark lawyer who can help you get it right.

Here's where to get information and help:

• The U.S. Patent and Trademark Office is the most authoritative source around. Everything you need to research and apply for a trademark is at the USPTO Web site (www.uspto.gov). A section for beginners, available from the Home page, offers a simplified introduction to USPTO services (click the "Need Help?" tab). Or go right to the section on Trademarks for basic facts, fees and pricing, tips on conducting a search via the Trademark Electronic Search System (TESS). A terrific FAQ section covers anything you can think of. The site also has a searchable list of approved patent and trademark attorneys. And if you decide to file on your own, you can do so online through the USPTO's Trademark Electronic Application System (TEAS). Spend some time at the site to familiarize yourself with the process. You can also call the USPTO at (800) 786-9199 or (703) 308-4357.
  
  
• Nolo Self-Help Law Center (www.nolo.com), from self-help legal publisher Nolo Press, offers a helpful section devoted to trademarks. You'll find short, "plain English" articles on different types of trademarks, conducting a trademark search, how the Federal trademark process works and how the law protects trademarks. Click on "Trademarks & Copyrights" at Nolo's home page