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Company founders often seek guidance in selecting their company names, turning to marketing and branding experts to help them pick a name that is distinctive, memorable and representative of the kinds of goods or services offered.
In addition to these branding considerations, there are practical legal issues entrepreneurs should take into account, including making sure that they’re not choosing a name that is already taken. Here are some best practices for determining whether your proposed company name is available.
1. Do a basic search
First, determine whether someone else already is using your proposed name to sell goods or services. After a Google or Bing search, consult your state’s list of registered entities, such as this one from California. You should also consult a county database, like this one from San Francisco County. Be sure to consult the databases where your entity is incorporated as well as where you are operating. Many startups incorporate in Delaware but operate out of another state. You’ll also want to check industry-specific publications.
2. Check domain availability
A website is critical to any new venture, and you have to make sure that domains are available. Having a domain name that is different from your company name can be confusing to consumers and ultimately damaging to your business. Whois.net is a great, free starting place to check domain availability.
3. Screen for trademark conflicts
Your future customers will associate your company name with your goods or services, and therefore you’ll want to protect your name by registering it as a trademark. A trademark is a word, phrase, symbol or design, or a combination of these, that identifies and distinguishes the source of the goods of one party from those of others.
The United States Patent and Trademark Office maintains a federal registry that lists protected marks. It is prudent to search the database to determine whether your proposed name has already been registered by another party. In many cases there may not be an exact conflict, but there may be another company or product with a name that looks or sounds similar.
Clients often ask how similar the names can be without causing consumer confusion and incurring liability. The answer is found in trademark law and hinges on whether consumers are likely to be confused by a similar name, given the types of companies involved, market considerations and other factors. Courts determine the likelihood of confusion. While there are many factors to consider in the analysis, determining the likelihood of confusion is a fact-based, case-by-case analysis.
4. Order a comprehensive trademark report
Because the test for trademark infringement is “likelihood of confusion,” it is nearly impossible to identify all of the various potential conflicts through simple manual searches. But there are many third-party services that account for this problem and offer computer-generated, comprehensive searches and reports. Ordering a comprehensive trademark report is always best practice, but it is especially important if you are planning to spend significant resources on branding and marketing. A report and analysis often costs around $2,000.
5. Consult a trademark expert
Trademark attorneys deal with issues around consumer confusion and the potential for liability every day. If you have any questions about the availability of your name, or questions regarding potential confusion, consult with an attorney. This is the foundation of your business, and you want to start on solid ground.