Starting a new business can be overwhelming, exciting and confusing all at once. No matter the industry, all new businesses have to deal with financing, advertising, organization, ownership structure, etc. One area that is neglected by many is ensuring that the name of the business is truly available.
There are 16+ million trade names in use in the United States. Similar names matter, if close in sound, appearance or meaning. Similar names in related classes, distribution channels and customer matter too. You are affected by Common Law use (14 million), State Trademarks (500,000) and Federal Trademarks (2 million).
Research is needed to make sure your trade name is legally available and it’s best to do this before: opening, expansion, incorporation or designing your logo. After all, why put in all that time, effort & money into a name that is already owned by another party?
Here are the 2 most important reasons research is a necessity:
* It’s Your Responsibility
It is up to each business owner to ensure that the name they are using is not infringing upon another’s Federal or State trademark as well as any prior Common-Law rights. While some governmental agencies (e.g. County Clerks, Secretary of States, the US Patent and Trademark Office) will conduct their own research, it is quite limited in scope.
For instance, in filing a Federal trademark, the US Patent and Trademark Office (hereafter referred to as the USPTO) does conduct a search of the Federal trademark registry, typically about 6-8 months into the process. However, this search does NOT include State trademarks or Common-Law databases, such as incorporations, fictitious names/DBAs, company directories, domain names, product announcements, etc.
* It’s for Your Benefit
In an ever-expanding marketplace, the competition amongst businesses has become fiercer. Overcoming the obstacle of reaching consumers is but one small step. Now, once that first contact has been made, how you get a consumer to purchase and/or come back to you is a larger hurdle. Brand recognition will be a major asset to you in this area.
Let’s look at it from the point of view of most consumers’ shopping habits - several visits to different stores, sites, etc. in order to compare and contrast. Ensuring that your name is legally available means that customers will not confuse your products/services with another party’s products/services and thus, guaranteeing that when customers look your business up by name, they are finding you and not your competitor.
So, we’ve established that comprehensive research of your business name is a necessity. The next question is how to go about it?
Preliminary research is a great place to start but keep in mind that any free resource available online is merely scratching the surface. Comprehensive research entails searching the pending and registered Federal & State trademark files as well as US National Common-Law files. Also, it's not just what you search but how you search it. Similarities in Sound, Appearance or Meaning matter, so when searching preliminary sites be sure to look for synonyms, spelling variations, word placements, etc.
Free preliminary sources:
* Your County Clerk - may have an online searchable database
* Your Secretary of State - may have an online searchable database
* USPTO - go to the TRADEMARKS section
* Search Engines
* Online Yellow Page Listings
* Domain Name Databases
It's best to leave the comprehensive research aspect to professional firms or attorneys. However, first, take advantage of the free resources that are out there. Then, if the name appears to be available, you can delve into having comprehensive research conducted. Provided the comprehensive research proves clear, you can then decide if you want to file for a Federal or a State trademark.
With the hundreds of particulars facing the new business owner, the name of the business should be one of the first secured details. Once you know the name is legally available, you'll be able to rest easy that you are not infringing upon anyone and that your customers know exactly who you are.
Search Your Business Name - Why You Need To & How To Get Started - To learn more about this author, visit Shannon Moore's Website.
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