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One of the earliest decisions a new business owner must make is what to call the new venture. There are many considerations including marketing, branding, and others but in this post we want to cover some of the legal considerations.

First, check the name availability with your state.

In order to form a LLC or Corporation, you must file formation documents with your state’s Secretary of State. As a result, the Secretary of State maintains records on all active and inactive businesses registered in the state.

This is often the first place you should search for name conflicts because a Secretary of State will not allow two active businesses to have identical legal names.

For example, if you want your legal name to be Hot Spot Technology and someone already registered a business with that name your application will be denied. But you can change your name to Hot Spot Technologies and get it approved (at least as the company’s legal name with the state).

But you have to look further!

Second, check the USPTO records.

While state business registries are concerned with identical names, trademark law is concerned with “confusingly similar” names.

The first trademark database to search is the United States Patent and Trademark Records. You should read our post on how to search the USPTO database, but in short, what you are looking for is any registration that is confusingly similar to your intended name that is also in a similar market. For example, if Hot Spot Technology sold grass seed, and your company with the same name wanted to sell computer chips, you can still probably get it approved.  However, if you also wanted to sell grass seed, you couldn’t get a registration on your favorite name or even the Technologies version mentioned above because the marks would be confusingly similar and in the same goods/services area.

So, while you can have a legal name of Hot Spot Technologies, you’d have to have a different name under which you do business (a DBA or Fictitious Name).

But that’s not all!

Third, check the common law.

As you may have read on this blog before, trademark law is comprised of both statute and common law. As a result, you need to run a common law trademark search. The post mentioned above covers this too, but the short version is you need to run internet searches, look in trade magazines, newspapers, and more, all to make sure there are not any unregistered marks out there that might cause you problems.

Ready to File?

If you are ready to file for a federal trademark, you should check out MightyMarks.com; our online digital trademarking service.


Image: Thinkstock/olm26250
*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.

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.

You’ve picked the perfect name for your new business; you even secured a reasonable domain name. And now you are ready to order business cards and start selling.

But have you thought about protecting your new name? If not, you should. And in this week’s post we will explain why.

Avoid Future Conflicts

The first reason is actually a bit reversed. You should go through the process of applying for a federal trademark so you can try to find prior users of the mark you want to use. A normal application process includes a search of the USPTO database and also a common law trademark search.

All too often new businesses fail to perform these searches and later learn of a prior user. Unfortunately, they often learn about that prior user through the receipt of a cease and desist letter. And when you receive such a letter, you will (at least in many cases) have to adopt a new brand at a great cost.

Stop Infringers

We have explained in the past that you don’t technically need a registration to claim trademark rights in a mark. However, if someone infringes your common law trademark rights, your cease and desist letter is a little less convincing and many infringers will ignore the demand.

The benefit of a registration is that you get a certificate from the USPTO that provides a legal presumption that you are the rightful owner of the mark. Once you have such a certificate, you can enclose a copy with your cease and desist letter to get infringers to end their infringement even faster!

National Protection

One of the biggest reasons to seek a federal trademark is national protection of your mark. When you rely on common law protection you can only claim rights in the geographic are in which you actually use the mark (plus a reasonable expansion area).

However, by obtaining a federal registration, you can stop new businesses from using your mark anywhere in the country. That is obviously a big benefit and with more and more businesses being transacted digitally all over the country, that benefit will come in handy.

Access to Federal Courts & Higher Damages

Lastly, without a federal trademark registration, you cannot file a lawsuit in federal court. If you wait until you find an infringer to file your application, waiting on the application will simply slow down your lawsuit and cause delays. And if you wait too long, the long-term damage of not being able to stop an infringer can be devastating.

Additionally, having a federal registration will give you power to seek larger damages and possibly even attorneys fees against an infringer.

How to Do It

Luckily, obtaining a federal registration doesn’t have to break the bank or be too complicated. You just have to find the right help. That’s where Mighty Marks® comes in. If you want help protecting your new business name, contact Mighty Marks® today!


Image: Thinkstock/Robert Churchill

*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.