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Naming your Business – Things to Consider

Choosing a name for a new business is an exciting challenge for its founder. A founder may want to select a name which reflects the business’s unique identity, or identifies its product or service, or has the founder’s family name as part of it, or which is simply a unique sounding abstract word. The possibilities are endless. However, as you channel your creative juices in finding a satisfactory name for your business, consider these issues:

1. Is the proposed name available to be used by the new business?

After selecting a name, the first step is to ensure the name is available to use in the State in which you plan to organize your business. Generally, you cannot register your business under a name already used to register another business in the State where you intend to form your business. And you cannot get around this by choosing a different suffix for your business—that is if the name “XYZ” is registered as XYZ, Inc. you cannot use “XYZ” to form an LLC. Researching the availability of the intended name for your business is vital to ensuring you do not incur name related expenses (like purchasing a domain, marketing your business) only to discover the name is not legally available for use. It is easy to find out if a name is available because most States provide access to search engines that allow the public to search existing organizations using search words or some other criteria. We also recommend conducting a general search on the internet to find out if the intended name is already being used by any other business in the jurisdiction(s) in which you intend to conduct your business. If you plan to use a fictitious business name for your business, then you should also check with the county clerk’s office of the county where your business will be located to determine if the name is available for use.

2. Will the name be able to obtain trademark protection?

United States Patent and Trademark Office (USPTO)defines trademark as a “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.” A service mark is defined as a “word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods.” Together, they are generally referred as “marks” or “trademarks”. If you intend to obtain trademark protection for your name (which is a word), we recommend considering these two primary issues–(a) Whether there is any existing trademark for the same or a similar name for same or similar goods or services as your business; and (b) Whether the name you have selected is suitable for trademark protection.

(a) Infringement on another’s trademark.

Since a trademark protection may be obtained simply by using a name, there is no single way to determine whether using your intended business name will infringe on another’s trademark rights. There are a few ways to discover whether a trademark for the same or similar name exists. The easiest place to start is through conducting an internet search for same or similar name providing same or similar goods or services. You can also search for same or similar names in the search database of the filing office of the State you intend to organize your business in and search the USPTO database to determine whether the name you want to use has been registered with it. Many online databases maintain lists of registered and unregistered trademarks (which you can find through a simple google search) which are also useful resources (we recommend searching a few to be more exhaustive).

(b) Eligibility for trademark protection.

Besides ensuring your name is available to obtain a trademark, it is also important to ensure the name (even if available) can obtain a trademark protection—this issue is slightly different. Even if no other business has obtained a trademark for the same name, you may still not be able to obtain trademark protection if the name you have selected fails to meet the criteria needed to obtain a trademark. For instance, if the name is generic (example a brand of handbags called “handbags”) or descriptive of the products or services (for example names such as “Best Pizza” or “Leather Shoes”), it cannot obtain trademark protection. But a name that is distinctive or made up of abstract word(s) is likely to obtain trademark protection. Some famous examples are Apple, Amazon, and Google. We recommend consulting a trademark attorney if you have any doubt on the ability to obtain trademark protection for your intended name.

3. Is the name available as a domain name?

If you intend to build an online presence for your business and want to use your proposed business name as the domain name of your business’s website, ensure the name is available as a domain name. If it is, it may be worthwhile to purchase it even if you do not intend to create a business website immediately. This will not only prevent online dilution of your brand by someone else reserving and using the domain name that is your business’s name but will also help avoid the unnecessary headache of having to later find another domain name that sufficiently identifies your business.

Also, depending on the laws of the State of organization of your business, there may be legal requirements you must comply with in naming your business. For instance, you may have to add a suffix like “Incorporated”, “Corporation,” “Company” (or their abbreviations) at the end of your business’s name if you form a corporation to conduct your business or add “limited liability company” or “LLC” if you conduct business through a limited liability company. Again, state laws may expressly prohibit the use of certain words as part of the corporate name. For instance, in California, a corporation cannot use the words “bank”, “trust”, or “trustee” as part of its name without obtaining regulatory approval.

Keeping these few things in mind will undoubtedly help ensure you pick a name you not only like but using which your business may be registered and its brand promoted.

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