Don't Forget the Intangible Assets in your Business Purchase or Sale: Intellectual Property has a Pink Slip

Here's something that may surprise you: intellectual property rights aren't just legal protections – they're actual assets that can be bought, sold, and transferred just like any other valuable property. Just like when you sell a car, there's more to an IP transfer than just shaking hands and exchanging money. You need proper documentation, title transfers, and sometimes even government filings. 

The Business Sale Scenario:

Let's start with the most common situation: selling or buying a business. When someone buys a company, they're likely not just purchasing equipment, a lease or property, and customer list. They're also buying intangible assets including trademarks, copyrights, patents, and/or trade secrets domains, and potentially access to social media accounts or e-com store fronts - depending on the business type.

While all of this should be included in your asset purchase agreement, that's often just the beginning of the paperwork trail. Different types of intellectual property require different transfer procedures, and some need additional filings with government agencies to make the transfer official.

Strategic Possibilities:

The ability to transfer IP rights opens up fascinating strategic possibilities. Companies regularly buy and sell patent portfolios, license trademark rights for specific markets, or acquire copyrights to expand their content libraries. Some businesses exist solely to buy, hold, and license intellectual property.

This transferability also means IP rights can be used as collateral for loans, contributed to partnerships, or even gifted to family members (though your tax advisor will have opinions).

Due Diligence Matters:

Of course, whatever your purpose in buying IP rights and related accounts requires the same careful investigation you'd apply to any major purchase. Is the seller actually the owner? Are there any liens, competing claims, or restrictions on use or registration? Are the rights still valid and enforceable? Can you even own them if they are located in a country different from where you live or do business? Smart IP purchases involve thorough due diligence, just like you wouldn't buy a car without checking the title.

Assignment & Recordation: 

Take trademarks, for example. You might negotiate the sale price and terms in your asset purchase agreement, but that alone won't officially transfer ownership of trademark registrations. You'll also need to complete a trademark assignment – the equivalent of a car's title transfer - and then record the assignment with the USPTO. 

It's like the difference between having a handwritten IOU and having a properly recorded deed. Both might have legal significance, but only one gives you bulletproof protection.

The USPTO wants to keep clear records of who owns what, which makes sense when you consider that trademark rights can last indefinitely. Imagine the chaos if ownership changes weren't properly documented over decades of business transfers.

Beyond Trademarks: 

Other types of intellectual property have their own transfer quirks. Recording copyright assignments with the Copyright Office can provide additional benefits. Patents have their own assignment procedures through the USPTO. Trade secrets can often be transferred through confidential assignment agreements without any government filings at all.

The key is understanding that each type of IP asset might need slightly different handling during a transfer, and have different tax implications for a business. 

Domains & Socials

Your purchase agreement should explicitly list every digital asset with current usernames, URLs, and access credentials. What seems simple on paper can become a post-closing surprise without proper planning.

While transfer of domain names is a fairly standard process which needs to be done through the registrars and can take several days, social media policies vary. Importantly, you are not "buying" the social media account or handle, you are buying access to the account, followers, and potentially the content posted there. 

So if you are valuing the asset purchase price in part on transfer of a particular social account & related assets, make sure to double check the platform's TOS to confirm it is possible. Same with 'sale' of e-commerce storefronts, which may require additional access points and platform permission to complete. 

Considering buying, selling, or monetizing intellectual property rights as part of your business strategy? Our experience can guide you through the process, ensure proper documentation, and help protect your interests throughout the transaction. Contact us to discuss.

Switching Business Names: The Surprisingly Long To-Do List That Comes With Rebranding

You've decided to change your business name. Maybe "Kat's Widgets" doesn't capture your expanded line of premium gadgets anymore, or you've outgrown "Mom's Kitchen" now that you're operating three restaurants. Congratulations on your business evolution!

Or, sad face, you didn't thoroughly vet your business name or assess the risk of a similarly named competitor and now have to change it because someone else had the great idea to call their widgets "Kat's Widgets" and has sent you a demand letter. They launched their product before you so have senior common law rights AND secured federal registration for their trademark. 

Next comes the heavy lifting: updating seemingly every piece of paperwork you've ever filed.

Changing a business name isn't always quite as simple as updating your website and ordering new business cards. It's like moving to a new home – you think you're just changing location, but then you discover you need to notify everyone from the post office to your dog's vet.

The Paperwork Marathon

Let's start with the obvious: the government agencies that need to know about your new identity. If you're changing the name of your actual legal entity, you'll need to file the appropriate name change documents with your state. This is the foundational change that makes everything else possible.

Once that is approved, you can use that to facilitate the change with the IRS, your business bank, any municipality where you have a business or seller's permit, your domain registrar, and on and on with other 3rd parties who need to know that the business formerly known as "Kat's Widgets, LLC" is now operating as "Premium Gadget Solutions, LLC." 

If your business has formal governing documents – like operating agreements for LLCs or corporate bylaws – these likely need updating too as they should reflect your business’s current reality.

Don't forget insurance policies, contracts, social media accounts, and of course any other brand collateral & product marking. 

DBAs or Fictitious Business Names as an Alternative

Here's where some strategic planning can come into play. DBAs are like stage names for businesses – they give you flexibility to rebrand while keeping your corporate structure intact. They're particularly useful if you want to test a new brand name or operate different divisions under separate identities.

So, sometimes you don't need to change your legal entity name at all – you might just want to file a DBA (Doing Business As) or fictitious name registration. This allows "Kat's Widgets, LLC" to operate as "Premium Gadget Solutions" without changing the underlying legal structure. DBA or Fictitious Business Name filings are generally required in the county where your principal place of business is located, and your county of formation, if it is not the same. Requirements will vary by location :)

The Trademark Angle

Now, we get to the intellectual property implications, which can be another interesting part of a name change strategy. 

If you're plan is to just change your business entity name or start doing business under another name, but keep the same trademark for your goods or services, the name change document from the Secretary of State or county can generally be filed with the USPTO to record the change in owner name on your registration - like updating the title to you car if you changed your own name.

But, if your name change means you've stopped using the mark you secured registration for and you're now calling your product something else (willingly or not) – say you're dropping "Kat's Widgets" as a trademark entirely – you would need to file a new trademark application for your new brand name to secure protection for that new mark. 

Planning Your Transformation

The key to a successful business name change is treating it as the complex project it actually is. Creating a comprehensive checklist, understanding your specific legal requirements, and timing the change strategically can make the difference between a smooth transition and months of catch-up work.

Ready to navigate a business name change without missing critical steps? We can help you understand your specific requirements, plan the transition strategically, and ensure all necessary filings are completed correctly. Contact us today to discuss your rebranding plans and protect your business throughout the transformation.

Three Musketeers of Trademark Protection: Common Law, State, and Federal Rights

Here's a fun fact that might surprise you: not all intellectual property rights are created equal. In the United States, patents and copyrights get their marching orders directly from Article I, Section 8, Clause 8 of the Constitution ("To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."); meaning they fall exclusively under federal jurisdiction. U.S. Trademark rights however, come from not one, not two, but three places – each with its own strengths and quirks.

Also, there is no global trademark. Trademarks are territorial so each country requires (with VERY FEW exceptions) its own registration if you want protection in that country. Anyone who tells you otherwise is selling you something that doesn't exist (or trying to steal your credit card info, but that deserves its own blog post). 

Complicated Start (i.e.The Nerdy Part):

Immigrants brought common law trademark and maker's mark concepts from Europe to North America in colonial times -  morphing overtime into common law rights provided for under state law. 

The first federal law addressing trademarks was passed in 1870, but wasn't around for long.  The Supreme Court of the United States (SCOTUS IYK,TYK) checked Congress' power & declared the Act unconstitutional because the title ("An Act to Revise, Consolidate, and Amend the Statutes relating to Patents and Copyrights") made it seem that Congress passed the legislation under the intellectual property clause of the Constitution. The Court said no thanks; trademarks are property to be regulated by common law and the states because "[t]he ordinary trade-mark has no necessary relation to invention or discovery." 

Following that fail, federal legislation would not be attempted again until 1881. And it stuck. This time Congress used its power under the Commerce Clause. However the 1881 Act, weirdly, only provided for federal registration of "trademarks used in commerce with foreign nations and the Indian tribes”, but did not include interstate commerce. And then, congress & litigants went on a bender with frequent revisions and court cases attempting to fit and fix the law to evolving social & economic structures. 

AND THEN, recognizing that after all that the law STILL didn't adequately address modern commerce and market needs, the American Bar Association began the long process that eventually yielded the Lanham Act signed into law by President Harry S. Truman on July 5, 1946.

After all that, both federal rights and common law rights currently get their power from the same law, though.

Common Law Rights:

Section 43(a) of the Lanham Act created a federal cause of action for unfair competition, including trademark infringement, even for unregistered marks - i.e. common law rights.

This is beautifully simple in concept – use a mark first in connection with your goods or services, and Presto! Boom! - you've got common law trademark rights. No paperwork, no fees, no government bureaucracy. 

But here's the catch: common law rights can be quite limited. Your protection extends exactly as far as your actual use – no more. If you're running "Carrie's Amazing Pizza" restaurant in downtown San Diego, your common law rights protect you for restaurants in San Diego. Not against "Carrie's Amazing Pizza" restaurants in Arizona, and not against "Carrie's Amazing Pizza" t-shirts in San Diego. It's protection with significant limits – real, but local & specific to the goods/services you are using it for.

State Trademark Rights:

State registration is like upgrading from a local food truck to a statewide restaurant chain. Your "Carrie's Amazing Pizza" trademark now has protection from the mountains to the sea (if your state, unlike California, doesn't have both - then you just get coverage for the whole state). The requirement here is straightforward: you need to actually be using your trademark to file the application. Most states aren't interested in protecting marks that exist for projects that kind-of-might-maybe come to fruition.

The Secretary of State's office for each state typically manages state trademark rights, along with business filings and many other intrastate commerce related services. 

Depending on your business type (cannabis, anyone?) this might be a very serviceable option. 

Federal Registration:

Finally, we reach the top tier of trademark protection: federal trademark registration with the USPTO. The Michelin Star equivalent for trademarks, if you will. 

Federal registration comes with serious advantages, including a legal presumption that you are the exclusive owner of the trademark and have nationwide priority. 

In plain speak - the biggest advantage is that federal registration provides for exclusive rights across all 50 states, even in areas where you haven't done business yet. But there's more! Another cool thing about a federal registration is the Constructive Notice Doctrine. This means everyone is deemed to be aware of registered trademarks - the registration serves as public notice. 

Federal registration & constructive notice create a legal presumption that you own the mark and have the exclusive right to use it. This shifts the burden of proof to anyone challenging your trademark, making enforcement much easier.

Plus, you get to use that coveted ® symbol.

The Tale of Two Symbols: ® vs ™

Let's clear up common confusion about ‘marking’ your trademark. That ® symbol isn't just decorative – it's reserved exclusively for federally registered trademarks. It's the trademark version of a VIP pass. Not all countries use this symbol, but many recognize its use for marks registered in that country. 

The ™ symbol is the general admission trademark indicator. You can use it for unregistered trademarks or marks registered only at the state level. It's like saying, "I consider this my trademark," without the federal government's official stamp of approval.

SM is the lesser known, but also important symbol. This is an indicator for unregistered or state registered Service Marks. 

Location, Location, Location

Here's something that sets trademarks apart: geography matters. A lot. Unlike patents, which provide uniform nationwide protection from day one, trademark rights are inherently tied to specific places. Your protection is only as good as your registration jurisdiction allows.

This can create interesting scenarios. There could be a "Mathilde's Bakery" registered federally, another registered in California, and a third operating under common law rights in Texas – and all three might coexist legally. This is becoming less common as smaller businesses develop stronger nationwide footprints with online presence, and the value & benefit of securing trademarks has become more mainstream. 

Choosing Your Adventure

Understanding these three levels isn't just legal trivia – it's strategic business planning. The right choice depends on your business scope, budget, and growth plans. A local service business might do well with state registration, while companies with national ambitions should consider federal protection. A prudent strategy may also need to change as your business changes over its lifecycle. 

Ready to navigate the trademark protection landscape? We can help you evaluate your options and develop a strategy that grows with your brand. Contact us today to discuss which type of trademark protection makes the most sense for your situation.

1. If you are not interested in the nerdy legal history bits, skip to the last paragraph of the section :)

2.  In re Trade-Mark Cases, 100 U.S. 82 (1879) at 94

3. J. McCarthy, Trademarks and Unfair Competition § 5:3 (5th ed. 2025)