How to Check if a Business Name Is Still Available
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 company come in and force you to stop using it. Checking business name availability is crucial to your business startup. This is true whether it's the legal name of your business or a fictitious name.
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To stay out of trouble with your company name, it's a good idea to take a moment to understand the basics of trademark law. In general, trademarks exist to prevent businesses from using names that might confuse consumers. Consumer confusion can occur when similar products have similar names. The result can be that consumers cannot determine the source of the product.
If you choose a name that is too similar to the name of a competing business, that business may accuse you of infringing on its trademark rights. When that happens, you may be forced to change the name of your business. You may even be ordered to pay monetary damages.
In general, the best way to avoid infringing on someone's trademark rights is through research, research, and more research. You need to dig around and find out if the name you have chosen is too close to any competing businesses.
However, doing a name search for all your competing businesses is not always an easy task. While it would be nice to say there is one place you can go to find out all the trademarked names in use, that is just not possible.
The U.S. Patent and Trademark Office (USPTO) maintains a registered trademark database. But under United States law, a business can establish an unregistered trademark just by using the name. Because of this, you have to be clever in performing an unregistered trademark search too. Here are some suggestions:
1. Basic Screening Search
One of the best steps you can take before jumping into a full-blown search is a simple screening search. This will help you 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. That is a basic first step to see if another company is already using your name (or a very similar name) to market a similar product. If this quick internet search shows your name is in use, you should think of some other names that yield no similar results in an internet search.
2. Look at the Fictitious Name Databases
Even if you come up with no similar company names in your basic internet search, you still need to keep digging. The next step in your search is to see if another business is doing business under your preferred name. This is usually referred to as a "doing business as" (DBA) name. It is also sometimes referred to as a trade name, an assumed name, or a fictitious name. To find out if another business is using your name as a DBA, you should go through the fictitious name database. You can usually find this database on the website of your secretary of state or another local agency. It will contain all the registered fictitious business names (DBA names) being used in your county or state.
This is a great next step to take after using an online search engine. Many small businesses register a fictitious business name without registering it as a trademark or putting it online. So, if you find a DBA 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 Listing Corporation, LLC, and Limited Partnership Names
You will need a unique name for your company when you file the paperwork to formalize your business structure. If you are planning on operating your company as a corporation, nonprofit corporation, limited liability company (LLC), or limited partnership (LP), you need to check with your state to see if another business entity is already using that name. Your secretary of state or similar agency will handle business filings. That agency often has a searchable database to help you find out if another local business entity's name is the same as or similar to yours.
If another local corporation, LP, or LLC name is the same as or very similar to yours, you should go back to the drawing board.
4. Find Unregistered Business Names
The internet is a great place to start searching for unregistered trademarked business names. Simply searching for your proposed business names can provide you with a wealth of information.
There are many online resources available to help you find unregistered business names. For instance, there are business entity databases that are more tailored to the manufacturing industry. There are additional online resources to check website domain name availability.
However, you should always keep in mind that there is no "one, complete source" 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.
5. Registered Trademarks
The final place that you should look when conducting your business name search is USPTO.gov. There, you will find the USPTO's database of registered trademarks. This database includes every trademark that the USPTO has registered.
Checking the USPTO's database can help you to avoid claims of willful trademark infringement. If you infringe on a trademark listed on the USPTO's trademark database, it can raise the question of whether you did so intentionally. If you are found to have willfully infringed another's trademark rights, you could face steeper penalties.
However, keep in mind that another business can still sue you for trademark infringement even if your infringement is not willful. This is why it's imperative to conduct a thorough search of business names.
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. After checking the database of your home state, you should then check the databases of any other states where you plan to operate.
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 safe using it.
However, if you have found evidence that there may be another business already using your business name or a very similar name, you need to 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 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. Remember that the larger the player is, the more likely it is that they have the resources and the reasons to sue for trademark infringement.
If the name you have chosen is similar to, or the same as, a registered trademark (especially if it is a registered federal trademark), then you should also avoid it. A federal trademark gives the owner of the mark the right to use the trademarked name exclusively in every state in the country.
When is it OK to Use a Similar or Identical Name?
There are a few situations in which it may be OK to use a name that is already in existence -- just be sure that the name you are using is not famous! For example, if another company is already using the name that you want to use, but the other company sells a drastically different product than you plan on selling, you may be able to move forward with using your chosen name. In addition, geographic location can be a factor that can allow you to use an identical name. If the business that already has your name is far away and serves only a small population, it is safer for you to use the name.
The key question that you must 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 Trademark
If you have found the name you want and have started using it, you may want to think about using federal or state laws to protect it. Although you are not required to register a trademark to "have" a trademark, it definitely gives you an advantage. That's because a registered trademark will help if you ever have to enforce your trademark rights in court.
Get Legal Help with Establishing Your Business Name
As a new business owner, 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.
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