We are going to assume at this moment that you have a brand of your own that you intend to register either in the name of your company or in your name as an individual. Sometimes, business owners cannot decide in whose name they should file their trademark so don’t progress at all. Before we dive into that, it is pertinent to understand precisely what a trademark is.
Any word, symbol, design or expression that represents a company, product or service.
Should I use Company name or personal name to Register my Trademark?
There is usually no need for big corporations to worry about this question because most of the time, it is one of the issues that is decided by their in-house lawyers.
For an individual running an organization or a company as sole-proprietorship, this section is not necessary. That is because there are no other parties involved in decision making. What this implies is that the decision of whether to register a trademark in a company name or a personal name is ultimately a personal decision of the owner of the business.
When it comes to partnership, however, it is a different game. In the case where some group of individuals are operating the business together, leaving the trademark owner under the ownership of the company is the best. One must always remember that running partnership businesses should only start after a separate company has been set up.
Why Set Up a Separate Company?
When viewed from a legal perspective, partnership ventures can be tricky and risky. In fact, in the legal sense, a partnership cannot be regarded as an entity. A company is an agreement that has been reached upon by two or more parties (or individuals), with the incorporation of some specific conditions.
If things go the wrong due to the indiscretion of one of the parties, all of the parties that are in agreement will bear the loss for anything or everything that the guilty partner did. An example is if one of the parties in the partnership obtained a loan and left town unannounced, the loss will be borne by remaining partners. They will all have to repay the debt with the properties or any other assets of the company.
Filing Trademark – In Your Name or That of the Company?
Things change when a person intends to have investors and shareholders on board. It is often the best to assign the trademark to the name of the owner when the owner plans to have investors but keep 100% ownership of the trademark.
The death of a brand is inevitable if the company goes belly up while the trademark is in the name of the company. The flipside is that if a company dies and the trademark is owned by an individual, the trademark will continue. A good example is Nokia – the Finnish communications giant. Even after the fall as a company, the Nokia brand reemerged under the watchful eyes of HMD Global. That was only possible as the brand Nokia was registered to the board of directors and not to the company.
What happens if the trademark owner dies without him assigning the trademark to another entity? Of course, the trademark dies with him. On the other hand, if there exists a will in which he left his assets, including the trademark to a particular individual, then the trademark is transferred to the individual. That might not be in case if a trustee was appointed.
What Does the Trademark Law Define?
Trademark law in the US and Canada states that:
- Under the controlled supervision of the owner, an organization, individual, or entity can make use of a particular mark or logo. The purpose of the trademark or logo must, however, be in adherence to the nature and quality of the products or services. It is important to note that the company cannot use the mark on goods and services that were not applied for during the registration process.
- When you permit your mark to be used under license, you must ensure quality control on the products or services that carry your trademark. A reasonable way of going about it is to have a licensing agreement signed between you, as the trademark owner, and the entities using your mark.
- Businesses and individuals are seen as separate legal entities. Therefore, in the case where an individual or an entity claiming ownership do not have authority over the nature and quality of the products or services under the mark, the registration for a trademark can be invalidated. For instance, if a wife files for a trademark in her name, but a husband begins to use it without her consent, the trademark can be invalidated.
- Enforcing intellectual property rights is only valid for authorized partners of a trademark.
Advantages of Filing the Trademark under the Company Name
It is a usual practice for an organization or a company itself to be the owner of the trademark after the formation of a business entity. Many advantages come with the company being the owner of the trademark. These include:
- Trademarks are assets, and they increase the value of the business.
- During financial transactions, trademarks can be used as security interests.
- In business negotiations, registered marks can be used as exploits.
- Business will have the capacity to permit or assign the trademark.
The value of trademarks increases over time. That invariably means that the amount of the business will ultimately increase over time. With the trademark owner, investors and potential buyers will be attracted by your company assets, should you decide to sell your business.
If you are a seller on Amazon
As a seller on Amazon, if the purpose of registering your trademark is to register with Amazon Brand Registry, it is recommended that you file your trademark in the same name in which your Amazon seller account was opened. Expressing it this way will make proving ownership of your trademark and store easier in case of listing hijacking or of a dispute.
Protection of Trademark
If you want to protect a trademark, there are three specific ways to it:
- Register the trademark with the Trademark Office of your nation.
- Use the trademark in a proper system that will not invalidate the use of the trademark.
- Police the marketplace and the Trademarks Office database to make sure nobody uses or files a similar trademark.