Dear Felicia,

I definitely have a question you may be able to answer. I have been operating my massage business under a name that I have not been particularly attached to, but now I have a name that I really like and am about to invest in new business cards, but before I do, I want to protect the new business name from infringement. This is my number one concern.

I've sought advice from an accountant, three lawyers, and my sister. I've also researched the topic online. I'm getting different answers from every source, and they are all contradicting one another.

Some say I have to file a fictitious name application, but others say I do not. Some say I have to file a service mark application (vs. a trademark application). Some say I need to set up an LLC, or a C Corp. or an S Corp. My question is: "Why can't I just remain a sole proprietor? Why do I have to change my business structure just to protect my business name from infringement? 

Let me begin by saying I am not an attorney and that my advise comes from my own personal and business experiences. I think there are two things for you to do. One is to register your business DBA (fictitious name registration) on the local level (usually the Register of Deeds in your county) and state (Secretary of State) level. I did this with both of my business names (Balance Day Spa and Spalutions). This just provides a recorded record of the business name within your community and proves when you began to use that name.

Of course before you register your business name you will have to do a search to make sure no one else is already using it. Even then, if they are in another industry or area, it may not matter so much. For example, if your name was "Spa La La" and there was already another "Spa La La" registered, you could perhaps go to "Spa La La Day Spa." 

I don't know what state you are in but I would suggest doing a Google search on "fictitious name registration NC" or whatever state you are in. When I did that for NC, this was one of the most helpful web sites I found.     http://www.sbtdc.org/quick_faqs/faqs.asp 

If you are planning to expand your business outside of your state or franchise it, then service marking makes sense. Trademarks are for businesses that sell products...service marks are for service oriented businesses. You can go ahead and use the "SM" with your logo and so forth without registering it but it will not be as well protected or registered without filing (and paying for) the registration.

Visit the official US Trademark and Patent Office's web site for more information and details:

http://www.uspto.gov/web/offices/tac/tmfaq.htm 

Do you have questions about your business structure, marketing,  general operations or other professional issues like ethics? If so, send them to me at Felicia@spalutions.com. I'll publish your question and my response in my blog along with whatever contact information you feel comfortable with me sharing (name, business name, city/state and/or website address or I can post it under as pseudonym if you'd rather remain anonymous). Then you can get a little PR for your business and others can benefit from our exchange. Thanks!