I plan to get a web host soon and I would like to name the domain after a future shareware business I intend to make. Let’s hypothetically call this “Mana Soft” (not the real name I intend to use). What is the difference between making it a DBA name and a LLC? Does creating a DBA name automatically protect the name from someone registering it as a LLC? Also, from what I understand, I have to be actively using a DBA name for business purposes in order to protect it. So, would I be able to sell advertising space for like a $0.50 a month on my site to get around that? Also, would it be a bad idea to name my site www.mana-soft.com without registering it as a business for a few months? If I were to name it that and some other business names itself mana soft, could I do anything about it? And how much does it cost to register a name as a business?

This is a huge topic, so I'm going to summarize a little. Business type (such as LLC, C-corporation, S-corporation, sole proprietorship) has nothing to do with name protection. It's all about legal protections and tax status. If you are Joe Bloggs DBA Mana Soft, chances are you are a sole proprietor. This is the simplest tax status, as you can do everything on a long-form 1040 - but doesn't give you any of the legal protections of being a corporation. So, if somebody sues you, they can theoretically go after everything you own. If you were an LLC or a corporation (S/C), you could separate business from personal assets and only lose business assets in lawsuits (LLC stands for "Limited Liability Corporation"). The taxes for LLCs are a bit more complicated than sole proprietorship, but not too bad. C-corp and S-corp taxation is pretty complicated, but there are reasons to go for these status-types if you are large enough.

To have a company name, you have to register a "fictitious name" usually with the Secretary of State for your state (exact procedure varies; here in MO it is $40, and a few mouse clicks). Once you have your fictitious name registered, noone else in the state can use it. In theory, you could register your name in every state - but that would be expensive.

Actual name protection is the domain of trademarks (and associated business marks, usage marks, etc.). Simply using a name in business grants you some weight in protecting it (unless you are violating an existing trademark), but to get actual trademark protection requires going through a registration process. The last time one of my clients did this, it came to around $1,200 including legal fees.

Finally, there is no reason why you shouldn't register mana-soft.com - as long as there isn't already a mana-soft.

Disclaimer: I am not a lawyer, and this does not constitute legal advice. If you want real advice, see an attorney. I do have a law degree, and am a business owner, but these are just my observations.

Thanks for that. So how hard would it be for someone to trademark your name once you are using it to do business?

Quote: Original post by ManaStone
Thanks for that. So how hard would it be for someone to trademark your name once you are using it to do business?

It would be easy, in that the registration process is simple. However it wouldn't be in their interest to do so because your prior claim to use of the name would almost certainly get a ruling in your favour - of course that might require the assistance of a lawyer, which would cost money. However, as I said, it really isn't in their interest to infringe due to the confusion. I worked with a developer who spotted an advert in a mag for a new company using the same name. We wrote them a nice letter and they stopped.

There are two levels of trademark; Unregistered (tm) and registered (®). An unregistered trademark is deemed to exist just by being used to trade but you would be required to prove an infringement before you could get a ruling against someone. A registered trademark offers additional protection in that you can usually get a summary requirement for the other party to stop using it. In essence registering pre-proves it is yours so the burden of proof is lifted.

There are various rules as to what does or does not constitute a trademark - check out http://www.uspto.gov/web/offices/tac/doc/basic/

Hello,

I have MegaGame.com and have TM pending for "Megagame" for protection. My registration will hopefully come in a few weeks. When doing a trademark you need to reg. it in the different classes that you might be using it. I will have it registered in 4 classes. Below is my registration from the USPTO. Someone who just uses the "name" for years does not have much of a case if there "name" is trademarked by someone else. For instance, there is a site called MegaGames.com plural. They are pretty big and pretty stupid for not ever getting there name trademarked. At any rate, I had MegaGame.com a whole year before they registered Megagames so thats another thing that proves first use. I'm not an attorney but that is how my attorney put it to me.

Below is my TM pending

Word Mark MEGAGAME
Goods and Services IC 009. US 021 023 026 036 038. G & S: ELECTRONIC GAME EQUIPMENT FOR PLAYING VIDEO AND VIDEO GAME PROGRAMS, COMPUTER MEDIA AND SOFTWARE FOR INTERACTIVE ENTERTAINMENT AND COMPUTER GAMES
IC 035. US 100 101 102. G & S: BUSINESS SERVICES, NAMELY, MARKETING AND DEMOGRAPHIC STUDIES, RETAIL STORE SERVICES RENDERED BY ELECTRONIC COMMUNICATIONS NETWORKS, MAIL ORDER, TELEPHONE AND RETAIL OUTLETS, PROMOTING THE GOODS AND SERVICES OF OTHERS, AND ADVERTISING FOR OTHERS

IC 038. US 100 101 104. G & S: COMMUNICATIONS SERVICES, NAMELY, PROVIDING CHAT ROOMS AND ELECTRONIC BULLETIN BOARDS FOR TRANSMISSION, RECEPTION AND SHARING OF MESSAGES BY MEANS OF ELECTRONIC COMMUNICATIONS NETWORKS, ALL IN THE FIELDS OF ENTERTAINMENT AND AMUSEMENT ACTIVITIES, MULTI-PLAYER COMPETITIONS, ELECTRONIC ENTERTAINMENT AND ELECTRONIC COMMUNICATIONS

IC 042. US 100 101. G & S: COMPUTER SERVICES, NAMELY, COMPUTER PROGRAMMING FOR OTHERS, COMPUTER CONSULTING AND ADVISORY SERVICES, PROVIDING INFORMATION AND INTERNET PORTAL SERVICES BY MEANS OF ELECTRONIC COMMUNICATIONS NETWORKS, PROVIDING ONLINE MAGAZINES IN THE FIELD OF COMPUTERS AND ENTERTAINMENT, PROVIDING INTERACTIVE COMPUTER DATABASES CONCERNING COMPUTER GAMES AND VIDEO GAMES, PROVIDING SEARCH ENGINES AND LINKS FOR OBTAINING COMPUTER SOFTWARE AND FOR SUBSEQUENT DELIVERY AND DISTRIBUTION OF THAT SOFTWARE

Quote:
Also, would it be a bad idea to name my site www.mana-soft.com without registering it as a business for a few months? If I were to name it that and some other business names itself mana soft, could I do anything about it?

If you start doing business (= making more than a few hundred bucks) you should register your fictitious business name with the state before the end of the tax year. It isn't hard to be a DBA (Doing Business As), filing the proper schedules (C and SE, you might need one or both) as part of your personal tax returns. That should be all the protection your size of company would need. On the tiny chance that somebody else wants to use the name at the same time you do, you'll really need to just establish your mark quickly (by doing a whole lot of business) and then make sure you register it before they do. If they submitted an application you could challenge it, and if they recieved the registration you could sue or try to buy the mark. But I doubt either of those will happen.

If you do more than a few hundred bucks of business, you really need to register with the state. The last thing you want is to get a tax audit and be fined for running an illegal business. A simple DBA for mana soft (or whatever) would help with that (see a tax advisor if you make more than a few hundred bucks in a year). As a negative side effect, you will almost certainly have to pay additional taxes to the state and maybe your county and city.

Quote: When doing a trademark you need to reg. it in the different classes that you might be using it. I will have it registered in 4 classes.
~snip~
I'm not an attorney but that is how my attorney put it to me.

I think you misunderstood your lawyer.

The USPTO Trademark FAQ explains the basics fairly well. I'm not a lawyer either, but I work with them occasionally and I have had classes in IP law. As always, getting legal advice from a non-lawyer or a government FAQ is risky, so talk to a real lawyer before acting on this sort of thing.

You do not need to register the mark to get basic protections.

You have common law rights simply by using a distinctive element with your stuff. There are international conventions that apply without you having to do a thing. They are weak protections at first, but you get some protection simply by common use of the mark. The longer you use the mark, the stronger the mark becomes.

Any distinctive name, symbol, styles, and terms that you use with your company, trade, service, or business are trademarks, service marks, trade dress, or other elements protected in the same type of law.

All marks (including registered marks) can be infringed on, and only the courts get to decide if they are strong enough. Even Microsoft lost their registered trademark status on "Windows" for a while because a court found that the mark wasn't strong enough when used alone.

The strength of the mark depends on a lot of factors, such as the distinction of the mark, how well-known the mark is, how long you and other people have been using it, its context, the markets involved, and a bunch of other factors that I have forgotten since my college classes covering this stuff.

Common words are very weak marks. A mark used in the domain name and with a business name registered with the state is also a weak mark, but it stronger than a non-registered business name. At least in that case somebody well known has associated the mark with you. It doesn't grant very much protection and is still very weak, but it does give you a verifiable date that it was first used in commerce. Registering with the government costs money and it must be renewed. Successful trademark registration gives considerably more strength to the mark, but they still aren't immune from all legal attacks. Major marks including 'Apple', 'Visa' and 'Windows' have lost legal challenges for being too weak in a given area.

Another issue is that you have to protect your marks. That means if you find out that somebody else is infringing on them, you must take action or you risk losing your mark. BandAid is a great example. Lots of people started using it as a generic term for self adhesive bandages, and BandAid lost their marks. Kleenex was similarly diluted but then they realized the trouble and started seriously enforcing their mark -- Kleenex is very distinctive again.

Another simple example: "WordPerfect" is very distinctive. "Word" is not very distinctive. "Microsoft Office Word 2003" is distinctive.

Geographic area is another aspect of trademarks. In the US, you can register marks at the state level and at the federal level. You can also get international rights through the Madrid Protocol. All have different but similar restrictions about the minimum 'strength' of the mark before they are willing to grant protections on it. In almost all of the nation, it is okay to use ™ and SM without doing anything. They are your trademarks and service marks. You need to have a registered mark to use the ® mark.

I hope that is a bit more information you can use.