Business Names and Trademarks

Naming a business can be a creative challenge, but it's worth the time to really explore potential names to maximize trademark protection and ensure that your name helps rather than hurts your business. For one, you want to make sure you're not using another company's trademark. Not only will it expose you to legal action, but changing business names can really set you back in terms of getting recognized by customers. And by not trademarking your name, you risk having your brand diluted by other uses of that name.

When naming your business, keep these three ideas in mind:

• Is the name available and not currently used by someone else?
• Can the name receive trademark protection?
• If you plan on making a website, is the name available as a domain name?

Trademark Protection and Why You Want It

The U.S. Patent and Trademark Office (USPTO) defines trademark as a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. Together, they may be referred to as "marks" generically.

Simply put, trademark protection gives you the exclusive rights to use a name. Having this protection is extremely important because it allows you to establish a brand and reputation for your business, separating you from your competitors. If someone tries to use a business name that is confusingly similar to your own trademarked name, you can prevent them from using that name and seek damages for any harm done.

Distinctive Names and Trademark Protection

To be protected, a trademark needs to be distinctive. There are many ways to be distinctive when naming a business. For example, a word may be fanciful (redbull for an energy drink), arbitrary in the context it is used (amazon for a bookseller), made up or purposely misspelled (google) or suggestive of the underlying product (slate for an online magazine).

Trademarks do not need to be registered to gain protection, they simply need to be used. Although registration with the U.S. Patent and Trademark Office (USPTO) is not required, it is advisable because it greatly strengthens your claim to a trademark if a dispute arises down the road.

Guide to Choosing a Distinctive Name

Choosing a distinctive name that conveys what your business does without using generic terms can be very difficult, so here are a few ideas to get you started.

• Keep it simple : ideally, you want your name to be as simple as possible, especially if you plan on making a website with the name. You want to create a name that is simple to remember and potentially simple to type as well. Try to avoid making long, complex names and avoid using any easily misspelled words.
• Make it unique : this is the real challenge for most people when naming their business. You want your name to be unique, because the more unique it is, the more likely you are to receive trademark protection and avoid any potential infringement claims. On the other hand, you want it to relate in some way to your business and to tie in to whatever it is you are offering, which typically involves keywords that are not unique at all. Striking this balance is the essence of finding a good name for your business.
• Avoid generic words and geographic names : try to avoid extremely generic words standing alone in your name, such as "shoes" if you are a shoe company (eg, Bob's Shoes). Also avoid using generic geographic names, such as California, because you are less likely to be able to register names with a geographic reference for trademark protection. Note that one way around this is to add something else to the name in an attempt to make it more unique, as in the case of California Pizza Kitchen. Any one of these words is generic on its own, but the combined name is unique and still conveys the meaning of the business.
• Don't limit new business : avoid choosing a name that is so restrictive that you will be unable to expand your business. For instance, if you created Bob's High Heels, and you want to start making sandals, your name is so specific that you may find it difficult to attract customers to your new sandals.
• Ask around : always talk to family, friends and your professional contacts about any proposed name to see what they think. You may be surprised at the reaction to some names! It's better to find out now rather than after you've spent a lot of money creating signs and stationery for your new enterprise.

Make a list of existing businesses that you respect and see if they seem to have anything in common. Maybe they're all fanciful names, or maybe they're all more conservative names - either way it will give you an idea for what kind of name you prefer. Finally, don't choose anything too trendy, since your business name will still need to sound good in twenty years.

Get Help from a Trademark Attorney

An attorney may not help you come up with the perfect name for your company, but you may need professional legal help when securing a trademark or protecting your brand. If you need help navigating the often-complicated world of trademark law while starting your business, consider speaking with a trademark attorney or business and commercial lawyer for expert advice.

See FindLaw's Choosing Your Business Name and Trademarks sections for more articles and resources to help you get started.