Deciding to start your own business is a difficult decision, but choosing a business name might be even harder. Many business owners have nearly lost their mind trying to come up with a memorable, catchy name with an available website domain. This harrowing process has led to a trend among tech companies of using nonsensical, combined, and made-up words as business names. (read about a few here).
Choosing a business name is not a process you want to have to go through twice. Think about the time and expense of re-doing all your business cards, signs, and marketing. OUCH. You also don’t want other businesses to be able to capitalize on your hard work by using your business name as their own. NOT FAIR. (check out “A Tale of Two Burger Kings” for a fun example) Fortunately, at each stage of your business, there are steps you can and should take to protect your business name.
- BUSINESS FORMATION STAGE: RESEARCH YOUR NAME
Before you start using the business name that you’ve chosen, you should research the name to find out whether there is an existing business using the name. Not every use will prevent you from using the name. For example, a plumbing company named “Pure White” operating only in Jacksonville, Florida may not prevent you from using the name “ Pure White” for a local yoga studio operating exclusively in Oceanside, California. However, to make an informed decision about the risk of using your business name and your business’ ability to expand using the name, you must know what other businesses are out there.
How to Research Your Business Name:
- Run a state (if available) and federal trademark search
- Search fictitious business name databases for your region
- Search your state’s Secretary of State business databases
- Google it
- Conduct a social media search (Instagram, Facebook, Twitter, etc)
Ideally, you should conduct research before you start using your business name. However, if you skipped this step, there is still value in a post-launch research of the name. If you need to change the name or license the rights to it, the earlier you do it, the better.
- EARLY STAGE OPERATIONS: USE AND PROTECT
Your rights to use and prevent others from using your business name are largely tied to two actions: using the name and registering the name with the appropriate bodies. In most states, filing a fictitious business name and filing your business’ formation documents with the Secretary of State very (VERY!) little protection for your business name. Most of the protection for your business name comes from trademark laws, assuming you’re using your business name as a mark.
Just using your business name as a mark to identify your business’ goods and services will usually provide some protection and limited ability to prevent others from using your business name. You can expand upon these rights through state and federal trademark registration. Federal registration provides broader geographic coverage and allows you to begin the protection process before you are using the name but is typically more time consuming and expensive than state registration. Your business’s operations and goals will dictate which form of trademark protection is most appropriate. It’s also a good idea to register any logos that you use in connection with the sale of your business’ goods and services.
- CONTINUATION AND GROWTH STAGES: ENFORCE & EXPAND YOUR RIGHTS
As you grow your business, you must enforce your rights to your business name (and corresponding trademark) by consistently using the name to identify your goods and/or services and taking steps to prevent others from using the name. Failure to use or enforce your trademark rights in your business name can actually lead you to lose those rights.
Use of the mark is somewhat self-explanatory. Enforcement doesn’t have to be complicated either. Mark your calendar to periodically run searches to see if anyone else is using your business. If they are, evaluate whether the use is improper. If it is, take action to stop the infringing user from continuing to use the name. Usually this involves sending a cease and desist letter to the individual or company using the name to inform them of your superior rights and direct them to stop using the name.
As your business expands, you should also consider whether there are steps you can take to expand your rights to your business name. This may mean moving from state to federal trademark registration or filing for incontestability status with the United States Patent and Trademark Office.
Protecting your business name is not as simple as filing out a single form. It is an ongoing process that is different at each stage of your business.
To learn more, you can use the following self-help resources or if you’re a California or Florida business, schedule a consultation with Bold City Legal, P.A. here.