So, you've taken the leap to start your new small business. You've got your list of suppliers in hand and your business model fresh in your mind. You even have the perfect business name picked out -- one that is going to bring the customers flooding in.
However, you still need to verify the availability of the business name you've chosen. After all, you don't want to build a business under one name, only to have another business come in and force you to stop using it. Checking business name availability is crucial to your business, whether it's your legal or fictitious business name.
Trademark Law
In order to stay out of trouble when it comes to your business name, it is worthwhile to understand the basics of trademark law. In general, trademarks are in place to prevent a business from using a business name that is likely to be confused with a competing business.
If you choose a name for your business that is a little too similar to the name of a competing business, that business may accuse you of infringing on its trademark rights. When this happens, you may be forced to change the name of your business, and you may even be ordered to pay money damages.
In general, the best way to avoid infringing on someone's trademark rights is to research, research, and more research. You need to dig around and find out if the name you have chosen is too close to any of the names of the businesses that you will be competing with.
Name Searching
However, doing a name search for all of your competing businesses is not always an easy task. While it would be nice to say that there is one place that you can go to find out all the trademarked names in use, this is just not the truth. Under the laws that apply in the United States, a business can establish a trademark just by using the name. Because of this, you have to be clever to find all the registered and unregistered trademarks. Here are some suggestions:
1. Basic Screening Search
One of the best steps that you can take before jumping into a full blown search is to do a simple screening search to make sure that doing a more in-depth search is worth it. A great way of doing a screening search is to plug the proposed name of your business into your favorite search engine online and see the results. By doing this, you can quickly and easily see whether someone is already using your name (or a very similar name) and is marketing a similar product. This can be a quick way to determine your name's availability.
2. Look at the Fictitious Name Databases
The next step in your search that you should take is to go through the fictitious name database that is kept by your county or state government. These databases will contain all the registered fictitious business names (or DBA names) that are in use in your county or state.
This is a great next step to take after using an online search engine. Many small businesses often register a fictitious business name without ever registering it as a trademark or putting it online. If you find a name that is the same as, or very similar to, the business name you have chosen, you should think twice about using it.
3. Databases Containing Names of Corporations, LLCs and Limited Partnerships
If you are planning on operating your business as a corporation, LLC or limited partnership, you need to check with your state's filing office to see if the name that you are planning on using is already in use by another corporation, LLC or limited partnership. If the name you want has already been taken, or another name that is very similar is already in use, you should go back to the drawing board and find a new business name that you like for your corporation, LLC or partnership.
4. Find Unregistered Business Names
The internet is a great place to start searching for unregistered trademarked business names that are the same as, or similar to, the business name that you have picked out. Simply conducting a search of proposed business names can provide you with a wealth of information.
Thomasnet (formerly The Thomas Register) is another great place to keep searching to find more unregistered trademarks. Thomasnet is a cross-industry website that contains thousands of registered and unregistered trademarks and service marks. Another resource that is more tailored to the manufacturing industry is IQS Directory. However, you should always keep in mind that there is no "one, complete source" that you can use to be sure that the business name you have chosen is safe. It is always best to use more than one search method and be as thorough as possible.
Network Solutions provides you with another great online tool that you can use to potentially find out the availability of your chosen business name. When you go to Network Solutions, you should plug in your desired business name, along with variations, and see if someone else has already reserved a domain name that includes your business name. If you find one, you may not be able to use your business name if the person that has reserved the domain name is using it commercially.
5. Registered Trademarks
The last place that you should look when conducting your business name search is the database of registered trademarks that is kept by the federal government. However, this is not to say that you should not check it. Indeed, you should always check it, but only if you get to this last step. This database will include every trademark that has been registered by the United States Patent and Trademark Office (USPTO).
The first benefit that you will get from checking the database kept by the USPTO is that you will avoid claims of willful infringement of trademark rights. If you do not check the database and it turns out that you did infringe on someone's trademark rights by choosing your business name, you may face a lawsuit that contains a claim that you willfully infringed the trademark rights. If you are found to have willfully infringed another's trademark rights, you will face steeper penalties. Do yourself a favor and check the database, it really is quite easy and it can save you a whole lot of trouble.
In addition to checking the federal database of registered trademarks, it is also a good idea to check your state's database of registered trademarks. It often happens that a small business will only need trademark protection within its home state. Because of this, many small businesses do not apply for federal trademark protection. If you do not check your state's database of registered trademarks, you again run the chance of being found liable for willful infringement. In addition to checking the database of your home state, you should also check the databases of any other states that you plan on doing business in.
Putting Your Search Results Together
So, you've finally finished your long search. If you are satisfied that the name you want to use is unique within your industry, then you should feel pretty safe about using it.
However, if you have found evidence that there may be another business that is already using your business name, or a very similar name, then you should be careful. Depending on the circumstances, you may or may not be able to use the name you like.
Times When You Cannot Use a Similar or Identical Name
The first rule that you should always apply is that if the name you want is identical to, or is similar to, the name of a major player in your industry, stay away from it. Always remember that the larger the player is, the more likely it is that they have the resources and the reasons to come after you for trademark infringement.
In addition, if the name you have chosen is similar to, or the same as, a name that has been registered as a trademark (especially if it is a registered federal trademark), then stay away from it. This is true even if you have given the name of your business a different sound. A federal trademark gives the owner of the mark the right to use the trademarked name exclusively in every state in the country.
Times When It May Be OK to Use a Similar or Identical Name
There are a few situations in which it may be okay to use a name that is already in existence -- just be sure that the name your are using is not famous! For example, if the name that you want to use is already being used by another company, but the other company sells a drastically different product than you plan on selling, then you may be able to move forward with using your chosen name. In addition, geographic location can be another factor that can let you use an identical name. If the business that already has your name is far away and serves only a small population, this makes it safer for you to use the name.
The key question that you have to answer is, "is it likely that a customer would be confused about the origins of the product or service if I used the same, or a similar name." For example, suppose that a business called "X-Y-Z" already exists and sells candy in Oregon. If you want to open a business called "X-Y-Z" that repaired computers, it would probably be pretty safe. If you wanted to open your business in Florida, it would be even safer.
Registering Your Own Trademark
If you have found the name that you want and have started using it, you may want to think about using federal or state laws to protect it. Although it is not required that you register a trademark in order to "have" a trademark, it definitely helps if you ever have to enforce your trademark rights in court.
Get Legal Help with Establishing Your Business Name
As an entrepreneur, you will no doubt have a number of legal questions. One of these questions may include how to secure a business name. If you have questions about claiming a business name - or any other questions about starting your new business - it's a good idea to contact a skilled business attorney near you.
