Originally from:
Advising Minnesota Corporations and Other Business Organizations - 2nd Edition - Hardcover
Advising Minnesota Corporations and Other Business Organizations - 2nd Edition - Electronic
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CHAPTER 14
PROTECTION OF INTELLECTUAL
PROPERTIES
§ 14.01 Trade Names1 and Assumed Names under Minnesota Law
Under Minnesota law, a trade name is "a word or phrase by which a
business, its services, or specific goods are made known to the public."2
Trade names are different than trademarks or service marks (for purposes
of this chapter, we will refer to trademarks and service marks collectively
as "trademarks" unless otherwise specified). A trade name is merely an
appellation. A trademark is an appellation of source—the source of the
appurtenant good or service. Generally, a trade name denotes the
business, a trademark denotes the source of goods, and a service mark
denotes the source of services. Therefore, a trade name, like a trademark,
may encompass a specific good or service or an entire line.3 In other
words, a trade name may also function as a trademark.
In Minnesota, any business that elects a business form may also elect
a trade name. A business may also elect to use a assumed name as a
trade name, rather than the name of the owner, to distinguish itself from
the competition, to protect its owner from imitators and impostors, or to
take advantage of goodwill created by other affiliated units or stores that
share the use of the name. From a legal standpoint, the purpose of trade
name law is to protect the integrity of trade names and to protect
business or corporate creditors.4 The trade name must comply with
applicable state level statutory formalities in order to receive full legal
protection.5 This is not necessarily so with respect to trademarks, which
are discussed in Section 14.04.
A business acquires a trade name by adopting a trade name not
already in use and by registering and using it.6 A trade name may consist
of one or more words that may not be independently protectable, but are
protectable as a whole.7 However, no one may acquire an exclusive right
to words that properly describe the mere nature of the business.8 Once a
trade name has been adopted, the owner does not have the exclusive right
to use those words; any other user must, however, combine the words in
a manner that will distinguish the two enterprises or products.9 Trade
names are regional only, and the scope of protection of the trade name is
limited to areas where it is in use. Even that protection, it should be noted
Roger J. Magnuson is a Partner at Dorsey and Whitney, LLP, where he serves as Head of the National Strategic Litigation Group and has practiced since 1973. He has been recognized as one of the top trial lawyers in the United States by major national and international publications, including Chambers International Guide to American Lawyers, which profiles the top 500 trial lawyers in the United States, Best Lawyers in America, Who's Who in American Law, and Who's Who in America. Mr. Magnuson was also recognized by a Journal of Law and Politics' survey for Judge's Choice "Wins Most Cases."
Some high profile cases that he has litigated include representation of the Florida Senate in the Bush v. Gore election controversy in 2000; and representation of the Plaintiffs in the widely publicized and studied Mall of America case. For several years he has represented, among other persons and entities, the Minnesota Twins and Major League Baseball principals and players in litigation; and has litigated national and local cases in federal and state court venues. He has appealed before the Supreme Court in a number of cases; as well as the Minnesota Supreme Court. He has authored several articles and 7 books.
Richard A. Saliterman is a Principal in Saliternan & Siefferman P.C., a full-service firm in Minneapolis established in 1976. Mr. Saliterman is a leading expert on corporate business matters, and is the author of several publications on business start-ups, franchises, and trademarks. Mr. Saliterman is the former National Judge Advocate for the U.S. Navy League, based in Washington D.C.
Contributing Editor:
Amanda Chang
Contributing Authors:
Alecia Anderson
Seth Back
John Baker
Shannon Berg
Constatin Burachek
Benjamin Carpenter
Ryan Check
Carl Christensen
Peter Fear
Michael Frasier
Aaron Hall
Catherine Hanson
Paul Harman
Amy Ithlan
Michael Kern
Chris Kuhlman
Brett Larson
Joshua Lederman
Karen Lundquist
James Magnuson
Jennifer Mead
Rao Menier
Heidi Miller
Rachael Moxon
Oliver Nelson
Scott Peitzer
Mitchell Skinner
Jonathan Stechmann
Lael Weinberger
Jonathan Wilson
Alex Zumbulyadis
