Business Organization & Transaction E-Newsletter

Make Sure Your Proposed Business Name Is Available

Find out if your desired business name is free for you to use.

Now that you've picked the perfect business name, can you go ahead and use it? Not without doing your homework first. You must make sure that you aren't treading on someone else's rights to the name.

Trademark Law

To stay out of trouble, you should understand the basics of trademark law, which prevents a business from using a name that is likely to be confused with the name of a competing business. If you choose a business name that's too similar to a competitor's name, you might find yourself accused of violating the competitor's legal rights (called "trademark infringement" or "unfair competition"), and you could be forced to change your business name and possibly pay money damages.

There's only one way to ensure that you won't violate someone else's trademark rights: Do some digging to find out whether another business is already using a name that's identical or similar to the one you want to use.

Conducting a Name Search

Unfortunately, there's no one place to look when searching for conflicting business names. In large part, this is because a business can establish a trademark simply by using it -- and millions do just that. You must use different search tactics to hunt for both registered and unregistered trademarks.

Fictitious Name Databases

First check with your county clerk's office to see whether your desired name is already on the list of fictitious or assumed business names in your county. (In a few states, there is just one statewide fictitious name database -- if that's the case in your state, your county clerk will tell you.) This list will contain names that you won't find in any other database -- usually unregistered trademarks of very small companies. If you find that your chosen name (or a very similar name) is listed on a local fictitious or assumed name register, you shouldn't use it.

Corporation, LLC, and Limited Partnership Name Databases

If you're organizing your business as a corporation, LLC, or limited partnership, you must be sure your business name isn't the same as that of an existing corporation, LLC, or limited partnership in your state. Contact your state filing office to find out how to search their name database. If your proposed name (or a very similar one) shows up in your state's database, you'll have to choose another.

Unregistered Business Names

The Internet is a good place to start your search for unregistered business names. By using several Internet search engines, such as Google and Overture, you can quickly see whether and how someone else is using a specific name.

A particularly useful (and free) resource for finding unregistered trademarks is the Thomas Register website at www.thomasregister.com. It's a cross-industry database that includes hundreds of thousands of trademarks and service marks. But keep in mind that any particular list you use to search for unregistered marks, including the Thomas Register, is likely to be incomplete. It's best to use several different methods to search for unregistered trademarks.

Another easy way to look for business names online is to go to the Network Solutions website at www.networksolutions.com and key in variations of the name you want to use. If another company has reserved a domain name that contains your desired business name, chances are you won't be able to use it, assuming the domain name qualifies as a trademark -- and it will as long as the underlying website is used commercially.

Registered Trademarks

Finally, everyone starting a business, no matter how small, should search the federal trademark database to determine whether the name they want to use has already been registered with the U.S. Patent and Trademark Office (USPTO). If you don't, and you use a trademark that's on the federal register and the trademark owner sues you, you can be liable for what's called "willful infringement" -- that is, knowingly violating someone else's trademark, even though you didn't actually check the federal database. Willful infringement carries more costly penalties than other types of trademark violations. Plus, it's easy to search for federally registered trademarks.

You can search for federally registered trademarks by using the free trademark database on the USPTO's website. To start, go to the USPTO's Trademark Electronic Business Center at http://www.uspto.gov/web/menu/tmebc/index.html and choose "Search." Then follow the instructions you see on the screen.

In addition to checking the federal trademark register, it's a good idea to check your state's trademark database. The state register is often part of the Secretary of State's office, though in some states it has a department of its own. You can also check one of several sites that search for trademarks registered in all 50 states, such as trademark.com or nameprotect.com. This is an especially good idea if you'll be doing business in more than one state.

Analyzing Your Search Results

If, after your search, you determine that the name you've chosen (or a similar name) does not already belong to someone else, you can go ahead and use it.

On the other hand, if your search turns up an identical or similar name to the one you want to use, you may or may not be able to use it, depending on the circumstances.

As a first rule, if your desired name uses part of a well-known or heavily marketed trademark, pick a new one right away. Don't risk the expense of a possible fight with a big corporation, not to mention the costs of changing the name on all of your business materials.

Also, if your desired name uses part of a name that's already registered for official trademark protection, especially at the federal level, you should take that as a "No Trespassing" sign and pick another name -- even if the name isn't very well known. Owners of federally registered trademarks have the right to use their trademarks anywhere in the country, and it is easy for them to bring and win lawsuits against trademark violators.

That said, there are a few instances when taking a name that's already in use is okay (as long as the name isn't famous). If the name is being used by a company that provides a very different product or service than the one you plan to sell, then you can probably move forward with your plans to use the name. This is especially true if the two businesses serve only local markets and are hundreds of miles apart.

The key here is whether your use of the name, or something similar, would confuse customers about the origin of the product or service. For example, just because a plumbing business in Coos, Oregon, calls itself Z-Pop doesn't mean you, in Arizona, can't use Z-Pop as the brand name for your soda pop. That plumbing business in Oregon is not your competitor and your use of Z-Pop for soda pop will not likely confuse customers into thinking that your soda pop is related to the plumbing business. On the other hand, if Z-Pop is being used to market another soda pop product, you should choose a different name.

To read and printout a copy of the Form please link below.

Sample Document: Certificate of Assumed Name

You can download a free copy of Adobe Acrobat Reader here.

Copyright 2006 Nolo

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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