What is a Florida Trademark?
A Florida Trademark is a word, name, symbol, slogan, phrase, or combination of these items, which is used to distinguish goods or services so as to indicate their source or origin throughout Florida. Registering a Florida Trademark is one way to prevent others from using the same or a similar mark in the State. Florida Trademark rights are established from the earliest of the date of first use of the mark on the goods or services. The mark must be in use before it can be registered. If registering a trademark, the goods or products must already be on sale in the market place. If registering a service mark, you must be rendering the services you are advertising before registering the Florida Service mark. You may not merely advertise for the future sale of goods or rendering of services since this does would not constitute use of a trade or service mark.
What are the benefits of having a Florida Trademark?
Over time, a name or logo of a business, in many cases, becomes the company’s most valuable asset as it represents a brand. By registering a Florida Trademark or Service mark, it prevents others from adopting your name or design and may provide you with very favorable enforcement powers throughout the State. Once you have registered a Florida Trademark or Service mark and the process is complete, you may put others on notice of this protection by allowing you to add the Trademark symbol "TM" or Service mark symbol “SM”. A registered Florida Trademark or Service mark allows you to advertise and promote your mark and build your brand through name recognition and goodwill for your business without fear of losing your mark to a competitor. If ever caught in a Trademark or Service mark dispute, a registered Florida mark may subject the infringer to an injunction, damages and attorney's fees, if litigation is necessary to prevent future damage. Failure to register a mark denies a company substantial benefits and the ability to build a brand confidently and stress-free.
What is the difference between a Federal Trademark and a Florida Trademark?
A Federal Trademark grants protection of the Trademark or Service mark throughout the United States versus a Florida Trademark or Service mark only provides protection within the borders of the State of Florida. A local business or regional company such as a local grocery store with one or a few locations within Florida may consider registering for only a Florida mark if it does not plan to enter commerce outside of Florida. Since registering at the state level affords a lower level of protection and many businesses today conduct some sort of commerce across state lines via internet, it is in every business owner’s best interest to register for both Federal and Florida Trademarks in order to obtain the greatest amount of protection for the business name or brand.
What is the difference between a Fictitious Name and a Florida Trademark?
In Florida, the “Fictitious Name Act” governs a fictitious name registration. This Act requires that a person engaging in business under a fictitious name register with the Division of Corporations of the Florida Department of State. The purpose of this registration is simply to give notice as to who is operating the business under the assumed name. Registration of the fictitious name does not guarantee exclusive use or protection of the business name. The fictitious name is merely a way to identify a business, entity, or individual. A very important distinction between a business name and trademark is the fact that a corporation can conduct business with the same name of another existing business. A trademark, however, is not a name, but considered as property. When trademark rights are obtained, the owner of the mark may be able to exclude others from using the mark in association with similar goods or services so as to avoid confusion to consumers.
Why Should the State Trademark or Florida Service mark be Owned by a Business Entity?
In one word, “liability.” Essentially, if you personally own a Florida Trademark or Service mark, you may be exposing yourself to lawsuits in connection with the products or services offered under the mark. It is in the best interest of you and your family as well as your business to create a business entity or separate business entities for separate functions to add layers of protection to limit your liability. Retaining the right legal counsel to guide you as to which business entities are best suited for your company is crucial to protecting your mark and the goodwill of your business. It is also extremely unwise to go into business without a full Trademark search and clearance opinion from an attorney. The search must be a full one and not limited to just one or two websites or corporate name databases since Trademark rights in the United States arise from use and not registration. Once the registration is complete, use of the “TM” or “SM” symbols are not mandatory, but considered good practice to use them to put potential infringers on notice of your company’s rights. The most important decision you can make for your business is to take the time and consult with an experienced attorney as to how to secure your intellectual property rights. Ultimately, the investment to secure such rights now will be outweighed by the value it creates for your business in the future.
Disclaimer: This article is not intended to be legal advice. Legal advice depends on each and every person's particular circumstance. This article is for informational purposes only and must not be used for avoiding any penalties that may be imposed under the Internal Revenue Code. Arora Law Firm and Radhika Arora, Esq. specifically disclaim any responsibility for positions taken by readers in their individual cases or for any misunderstanding on the part of readers of this article or publication.
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