Business people use many different terms and acronyms to refer to the “street name” of a company: d.b.a, a.k.a., trade name, trademark, fictitious name, etc. In Ohio, there is technically no registration process for a “d.b.a.” Furthermore, the various registrations that are available afford very different legal protections to the registrant (or none at all). This short guide will help you understand the difference between your options in Ohio when it comes to registering the street name of your company. But first, a note: the terms “trade name,” “trademark” and “fictitious name” all carry very different legal protections. Therefore, these terms should not be used interchangeably, and if someone does use one of these terms, it would be worth asking whether they mean what they say. Here are the various options:
No Registration/Company Registration only
This is the best place to start. If you have registered your company/corporation with the Ohio Secretary of State, then you have already registered the exact name of your company (congratulations!). For example, if you registered your limited liability company as “ABC LLC,” then nobody else in Ohio can register the name ABC LLC. Unfortunately, that is where the protection ends. Someone can register a minimally different name (“ABCD LLC”). Furthermore, your name is fair game outside of Ohio. Finally, as we will discuss, someone else can use the name “ABC,” they just can’t register it. If your goal is to prevent someone else from using your name, you will have to resort to other law to do that. As you can see, you get some protection, but not very much.
Why Pick This Option: The name you use in public is the name of your company.
Fictitious Name Registration
This is the easiest name registration to receive, and it is also the least effective. It is little more than “notice” to the rest of the world that you are operating under that name. It doesn’t afford you any protection; in fact, people commonly use this registration when they can’t register the name they want (either because someone else already registered the name they want, or that name can’t be registered at all). Do not file a fictitious name filing in Ohio and expect any measure of protection. On the other hand, don’t go around telling people that your “D.B.A.” is XYZ unless you have at least done a fictitious name registration for XYZ.
Why Pick This Option: You want to use a different name in public than the registered name of your company, but you can’t “claim” the name. You can also use this registration if you haven’t registered a company at all, and are operating as a sole proprietor or partnership.
Trade Name Registration:
This is a little tougher to obtain because two trade name registrations cannot be identical. However, the same caveat applies as in point one above: two trade names can be very similar (even confusingly similar), and both can be accepted.
Why Pick This Option: You want to claim the exact name. As with a fictitious name, you can use this registration if you are operating as a sole proprietor or partnership. In fact, this would be your best option if you haven’t registered your entity.
Ohio Trademark Registration
This is the most confusing option, for several reasons. First, people often refer to trade names or d.b.a.’s as “trademarks.” None of the aforementioned registrations are “trademarks.” Trademark protection is relatively substantial; as discussed above, trade name registration is minimal, and non-registration is even less. Second, we are talking here about Ohio trademark protection, not federal trademark protection. Although the two are based on similar theories of law (i.e. you get protection against confusingly similar use), federal trademark protection is nationwide. In summary, if you have a trade name registration, you do not have a trademark; if you have an Ohio trademark, you do not have nationwide trademark protection.
As mentioned above, Ohio trademark protection is real protection. Within the boundaries of Ohio, your use of the mark is protected, and others cannot use that mark in commerce. Furthermore, others cannot use a mark that is confusingly similar to your mark. Generally speaking, a competitor’s mark is “confusingly similar” if a consumer might believe that a product bearing that mark was made by you.
Here is the thing: Ohio trademark registration is a simple affair; you complete and file the form, and the Secretary accepts it. Unlike the USPTO (for federal trademarks), the Secretary of State does not decide whether your mark is worthy of protection. In other words, the Secretary of State doesn’t reject your filing if it is too similar to someone else’s. If someone else is using a similar mark (or claims a similar mark), the Secretary of State isn’t going to tell you that. A lawyer can tell you that (or you can find out when your competitor sues you).
Why Pick This Option: You (or your lawyer) have determined that you have the right to claim your name, and strongly claiming that right (in Ohio) is important enough to justify the extra expense.
I want to conclude by clarifying that all of the filings listed above do serve a purpose. In other words, none of them is “useless,” and in fact, even the filings with the least amount of protection may give you all the protection you need. It would be unnecessary for you to spend more time or money to get more protection in your case.