14 Dec What’s in a Name? Turns Out, a Whole Lot
As you start your business, coming up with a great product or service was likely the easy part. You knew what you wanted to create and how you are best able to serve your customers. The harder part is creating a brand that is engaging and lets your offering stand out in the marketplace. First things first, your brand begins with your business name.
Naming a business is tough. Not only does the name need to be catchy, memorable, descriptive, and clear, but it also needs to be available in your state and able to be trademarked nationwide. This is not to say that a name needs to be totally unique. It’s not necessary that an online search of potential business names returns absolutely no results. Instead, it is most important that the name is not already being used for a business registered in your state and that, if the name is used in another state, your business offering is substantially different than ones that already exist under the same name.
Choosing and Registering a Business Name
Your business name is the official name your company goes by when conducting business. Legally, it is not required to register a business name before you begin selling products or offering services, but failure to register can lead to significant problems.
There are two ways to register business names. One is simply to register the name you wish to use. Many states offer this option as a way of holding a name while you get your business structure in order. There is often a fee to register a name with a state. The second option is to go ahead and create a business entity. If you choose this option, most states do not require that you separately reserve the business name. You can just file the full application to create your corporation or LLC.
Before registering a business name with the state, you will first have to check that it is available. Each state’s business database is different but most are operated through the secretary of state’s office or the state taxation authority. The business name you wish to use will need to be distinguishable from any other business registered in your state.
Second, it is a good idea to check the United States Patent and Trademark Office (USPTO) database to see if any other businesses hold trademarks in your chosen business name. If a business does already hold a trademark with the same name, all is not lost. If your business offerings and location are substantially different from the business that holds the trademark, you may still be able to use the name. Consult with a trademark attorney to determine if you should move forward with your chosen name.
Creating a Legal Business Entity
Once you have chosen a name that is available, you are ready to take your next steps. Creating a legal business entity is the best way to protect both your business name and your business assets. Whether you choose to create an LLC or a corporate entity, a legal business structure will provide essential liability protection. Without creating a legal business entity, you (as a sole proprietor or as a general partnership, if you work with another individual) are personally liable for the actions of your business. Before incorporating a legal entity, any business you conduct will be done as an individual “doing business as” (DBA) your business name. Even though you may be operating under a business name (and you may have registered that name with the state), you will not be afforded any liability protection or legal separation from your business dealings until you incorporate or organize a business entity.
Business Registration v. Trademark
Once you have established a business entity, you are not done protecting your business name yet! Registering your business with the state and creating a legal entity is not the same as having a registered trademark for that name. Name distinguishability is limited to the state that accepts your name. Trademark, however, is a federal protection, so you will need to go through a separate registration process with the USPTO.
As you are going through this process of naming, registering, and protecting your business, each action you take adds another layer of intellection property protection. Simply by using the business name, prior to any kind of registration, you are afforded some common law protections for your name. However, it will be very difficult to prove when you first began using that name in your business and enforce your exclusive use of the name, should someone else begin to do business under the same name. Registering the name with the state, as we mentioned earlier, is a way of putting the state on notice that you intend to use a name. This does not provide any formalized intellectual property right, but the registration date could be used as evidence of when you first began using the name in commerce. The formal creation of your business entity, as well, can be used as evidence for when you started using the business name, but it is not the same as registering a trademark.
The best and most complete way to protect your business name is to trademark it with the USPTO. By doing so, your business will gain legal enforcement power to protect your brand name against infringers. It is important to ensure that other businesses are not infringing on your business name because it can lead to brand confusion. Your business name will become synonymous with your reputation and your brand. A registered trademark is the clearest way to ensure that your business name is protected and serves your bottom line.
What if I Don’t Want to Use My Business Name Anymore?
You can change your brand name without changing the name that your business is registered under with the state. In many states, you can do this by registering a fictitious name, such as a DBA. It is important to register any alternative names under which you do business; otherwise, you could again open yourself up to personal liability. If you are doing business under a name that is different than your registered business name, it is possible that you would yet again be considered an individual DBA the unregistered name.
Naming a Business Can Set the Tone, But Don’t Let it Hold You Back
Naming is a difficult process, and you want to get it right. But, don’t let waiting for the perfect name to come to you stop you from starting your business. It is possible to change the name and protect yourself, your business, and your intellectual property. Just follow these steps and reach out to an experienced trademark attorney if you think you need help. Lourdes Hilliard at The Brand Protected® is always happy to help you think through your business name and navigate the name registration and protection process. Click here to schedule an appointment.