A “trademark” functions as an identifier of goods or services, while a “trade name” primarily identifies the owner or operator of a business and may also be used to identify the goods handled by such owner. Stuart Enterprises Int’l, Inc. v. Peykan, Inc., 252 Ga. App. 231 (2001).
A person may acquire a trade name through long and extensive use of the name or through registering a business with the Georgia Secretary of State. However, if a person fails to register a trade name previously acquired, he will not be deprived of using the trade name if someone else does register the name. Giant Mart Corp. v. Giant Discount Foods, Inc., 247 Ga. 775 (1981); Pearl Optical, Inc. v. Pearle Optical of Ga., Inc., 218 Ga. 701 (1963).
There are numerous sources of protection for someone else using your trade name in the course of business. The Uniform Deceptive Trade Practices Act (discussed in a previous post) is one of them. Other forms of protection come from Georgia common law.
Moreover, a claim for common law trademark infringement is expressly excepted from the registration requirement of Georgia’s trademark infringement statute. Diedrich v. Miller & Meier & Associates, Architects and Planners, Inc., 254 Ga. 734, 334 S.E.2d 308 (1985); SCQuARE Intern., Ltd. v. BBDO Atlanta, Inc., 455 F. Supp. 2d 1347 (N.D. Ga. 2006).
If you are unsure whether your trade name or trademark are being adequately protected, make sure to contact an experienced business attorney at Betts & Associates to discuss your options with you over the phone or in person.