You are here

15.3 Definition—Trade Name/Commercial Name

Printer-friendly version

15.3 DEFINITION—TRADE NAME/COMMERCIAL NAME (15 U.S.C. § 1127)

A [trade name] [commercial name] is any word or words, a symbol, or combination of words and symbol, used by a person to identify that person’s [business] [vocation] [or] [occupation] and to distinguish it from the business of others. A [trade name] [commercial name] symbolizes the reputation of a person’s [business] [vocation] [or] [occupation] as a whole. [By comparison, a trademark identifies a person’s goods.]

Any person who uses the [trade name] [commercial name] of another may be liable for damages.

[If a person owns a trade name, then that person has the exclusive right to use the name or to control the use of confusingly similar variations of the name by others in the market.]

Comment

Use of a term as a trade name and trademark is properly analyzed separately for infringement, when the term serves as both identification for an organization (trade name) and as an identification of the source of a product (trademark). See Self-Realization Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 903, 908–09 (9th Cir.1995)). The right to use a term as a trade name is not necessarily coterminous with the right to use that term as a trademark for goods or services. See Stephen W. Boney Inc. v. Boney Services, Inc., 127 F.3d 821, 828–29 (9th Cir.1997). Accordingly, each should be analyzed and instructed separately.

"Trade names symbolize the reputation of a business as a whole. In contrast, trademarks and service marks are designed to identify and distinguish a company’s goods and services . . . . As a practical matter, courts are rarely called upon to distinguish between trade names, trademarks and service marks. Trade names often function as trademarks or service marks as well . . . . Perhaps because of this functional overlap, the same broad standards of protection apply to trademarks and trade names." Accuride Int’l v. Accuride Corp., 871 F.2d 1531, 1534–35 (9th Cir.1989).