A fictitious name is a company asset. It is the name with which consumers will come to associate a good or service with your company. Protecting fictitious names is one of the best investments a company can make.
In Florida, there are risks associated with choosing a fictitious name, but also ways to insure your right to use it.
First, to prevent potential claims or confusion, it is important to check with the Department of State that the fictitious name you’re doing business under is an available. If it is, consider forming your business under the fictitious name as an entity with limited liability protection. This will ensure that no other company doing has your name and is operating business in your field.
Second, trademark your name. If you are already doing business under a fictitious name and you haven’t even done a knockout search, you could be infringing on someone else’s mark, which puts you at risk to potential infringement law suits. Only a thorough trademark search will provide you with the certainty you need to protect yourself. If you’re already doing business under a fictitious name and you haven’t registered it as a trademark, you only have rights to the name through common law trademark protection. Common law trade mark is limited protection and only protects your brand in the geographic area in which it’s being used. This could be a problem if you’re planning to expand your business into other cities or states.
Someone else could register the same mark federally and preclude you from using it everywhere in the United States other than where it’s already being used. To guarantee broader protection, you should register your mark federally with the United States Patent and Trademark Office (USPTO). Doing so requires an experienced intellectual property attorney, but it provides you the right exclude others from using your brand nationwide.
Third, buy a domain name. Doing this will reserve your online real estate the e-commerce marketplace where consumers are searching for your brand. Beware of overly expensive domain names or domain names that were registered for the purpose of stealing your business or preventing you from registering your mark. If the domain name was registered in bad faith, you may need to file a claim under the Uniform Domain Name Dispute Resolution Policy to claim rights in the domain.
