Choosing a name for your business can be exciting. Maybe you’ve been thinking about it for months, or perhaps the perfect name came to you unexpectedly. Either way, once you find a name you love, it’s easy to start imagining it on your website, business cards, packaging, and everything else associated with your business.
But before you get too attached, there’s something worth understanding: Just because a business name is available doesn’t necessarily mean you have the legal right to use it.
And that’s where trademark law comes into the picture.
A Business Name and a Trademark Aren’t the Same Thing
One of the most common misconceptions among business owners is that registering a business name with the state gives them exclusive rights to that name.
It doesn’t.
When a state allows you to register an LLC or corporation under a particular name, that generally means the name satisfies the state’s business registration requirements. It doesn’t mean the state has determined whether your use of that name would infringe someone else’s trademark rights.
The same is true of domain names. Just because you can purchase a website address doesn’t mean you have the legal right to use that name for your business.
Business registration, domain name availability, and trademark rights are three different things. Understanding that distinction can help you avoid some expensive surprises.
What If Someone Else Is Already Using the Name?
Here’s where things can get complicated.
Trademark conflicts aren’t limited to businesses using identical names. Two names can be different and still be confusingly similar.
For example, imagine two businesses with similar names offering related products or services. Even if the names aren’t spelled exactly alike, consumers might mistakenly believe the businesses are connected.
Trademark law considers several factors when evaluating the likelihood of confusion, including similarities between the marks, the relatedness of the goods or services, and how consumers encounter them.
Another important consideration is that trademark rights can arise from actual use in commerce, even without federal registration. That means a business may have enforceable trademark rights despite not appearing in the federal trademark register.
This is one reason checking whether a name is already registered with the United States Patent and Trademark Office (USPTO) doesn’t always tell the whole story.
Why the Name You Choose Matters
Not all business names are equally strong from a trademark perspective.
Some names simply describe the products or services a business offers. Others are more distinctive and help consumers identify a particular business as the source of those products or services.
Generally, distinctive trademarks are easier to protect than names that merely describe what a business sells or does.
For example, a bakery named “Fresh Baked Bread” may face challenges obtaining trademark protection because the name describes what the business sells. A bakery named “Purple Elephant,” on the other hand, uses a distinctive name that has no obvious connection to baked goods and may be easier to protect as a trademark.
That doesn’t mean descriptive names can never receive trademark protection. Some can, particularly when they acquire distinctiveness through use. But the type of name you choose can affect the legal protection available.
Why Finding Out Later Can Be Expensive
Imagine spending months building your business around a name. You’ve created a website, ordered signs, developed packaging, established social media accounts, and started attracting customers.
Then you learn that another business may have superior trademark rights.
Depending on the circumstances, you could face a dispute or find yourself considering a name change. That might mean replacing marketing materials, changing your website, or rebuilding some of the recognition you’ve worked to establish.
Not every potential conflict results in a lawsuit or requires a business to change its name. But addressing trademark concerns after investing in a brand can be more complicated and expensive than identifying those concerns earlier.
Your Business Name Deserves More Than a Guess
Choosing a business name involves creativity, personal preference, and business strategy. But it also involves legal considerations that aren’t always obvious.
A trademark attorney can help you understand those considerations, evaluate potential conflicts, and assess whether a name may qualify for federal trademark protection.
And while no trademark search can guarantee that a name is risk-free, a comprehensive search and legal analysis can provide valuable information before you make a significant investment in your brand.
The goal isn’t to take the excitement out of choosing your business name. It’s to help you make an informed decision about a name you hope to build a business around.
If you have questions about protecting your business name, I’d be happy to talk with you. Schedule a free consultation at dinahraineylaw.com to learn more about how I may be able to help.
