By: Tyler Hampy
Is a “trade name” the same thing as a “trademark?” This is a topic that seems to give people trouble. The Lanham Act offers some help to distinguish the terms. By definition, a “trade name” is any name used by a person to identify his or her business or vocation. On the other hand, “trademark” is defined as any word, name, symbol, or device or any combination thereof used to identify and distinguish goods and to indicate the source of goods.
Modern usage restricts the term trade name to names used to distinguish companies, partnerships and businesses. A business or corporate trade name symbolizes the reputation of a company and the business it conducts. However, trade names often function as trademarks or service marks as well.
As one court explained, “[a] trade name is descriptive of the manufacturer or dealer himself and applies to a business and its good will, whereas a trademark, in a technical sense, is applicable to vendible commodities … a trademark has reference to the thing sold while a tradename embraces both the thing sold and the individuality of the seller.”
One of the main differences between trade name and trademarks is that words, pictures and symbols used solely as trade names, as defined by the Lanham Act, can’t be federally registered as a mark. Of course, such words, pictures or symbols can be registered as trademarks or service marks if they are used in such a way to meet the definition of a trademark.
Although trade names acting solely as trade names can’t be federally registered, actions for trade name infringement can be brought under the Lanham Act. The Ninth Circuit has said that trade name infringement is based on considerations similar to trademark infringement and that both preclude one from using another’s distinctive mark or name if it will cause a likelihood of confusion or deception as to the origin of the goods.