What To Do First: Company Name or Trademark

March 3, 2015 — Leave a comment

New businesses, whether  local mom and pop stores or high growth tech startups, have a lot on their plate. One early question is what to call the company and how to go about registering and protecting the business name.

In this post, we will walk through considerations for when and how to pick your business name.

First, do some research.

Your first step is always to do your research. You should search your Secretary of State’s database of registered companies to see if your company name is available in your state. This is because most states will not allow two companies to have the exact same name in their databases.

You should also search whether your domain and social media names are available. This can be a hard one. And further, you should search the USPTO database (more on that here) to see if there are any confusingly similar marks already registered

Second, reserve the name or form your company.

Once you have settled on your business name, it is a good idea to reserve it with your state’s Secretary of State (if they allow reservations). This will give you some time to secure the rights to that name with the USPTO (see below). If you can’t reserve the name, then you might go ahead and form the company if the formation fees are not too high. You can always dissolve it later.

Third, file an Intent to Use Trademark Application.

Assuming you have not started using your business name in commerce, you can file an Intent to Use Application with the USPTO to get approval on your name. You just have to have a bona fide intent to use the name within six months. After three to four months, you should get a response from the USPTO on the availability of your business name. If it is approved, then form your company if you haven’t already done so. Then you can really start turning your idea into a real business!

Wait, I don’t have time to do all of that!

We get it; the above process isn’t always practical. Or maybe you just don’t want to wait.

In that case, you should talk to an attorney to help you in selecting the right business name. Then, with the right guidance, you might proceed with all of those steps at the same time. And if you are already using the name in commerce, you can file a Use Based Trademark Application rather than an ITU as described above.

And if you hit a snag, you can always change your name later, there will just be administrative headaches involved with the changing your name.

This is why it is a good idea to get a knowledgeable trademark attorney to help you in your early days. When looking for a good attorney, be sure to check out how MightyMarks.com can help you!


Image: Thinkstock/nobiggie
*This article is very general in nature and does not constitute legal advice. Readers with legal questions should consult with an attorney prior to making any legal decisions.

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