Distinctive Names Receive More Trademark Protection
Distinctive business names are both clever and memorable. Distinctive names (such as Xerox, Quicken and Amazon.com) receive protection under federal and state trademark law, while common or ordinary names (such as Smith’s Hardware, Tom’s Gourmet Sandwiches and Pets.com) usually do not.
While there’s no magic formula for concocting distinctive business names, strong names tend to be made up of surprising or fanciful words that often have nothing to do with the underlying business, product or service, such as Kodak film or Double Rainbow ice cream. There can be a downside to coining a brand new word or using a completely arbitrary term, however. Business names that have nothing to do with the underlying product or service often require extensive and expensive marketing efforts to become established.
The best names are often those that customers can easily remember and associate with your business. For this reason, many small businesses prefer to use words that cleverly suggest qualities about the underlying product or service without describing them outright, such as Lending Tree for loans, Slenderella for diet food products or The Body Shop for personal hygiene products. These names are also considered distinctive and are therefore protected as trademarks.
Tips for Choosing a Distinctive Business Name
Here are a few more guidelines to use in your search for a distinctive business name:
- Make your name memorable. A creative, distinctive name will not only be entitled to a high level of trademark protection; it will stick in the minds of your customers. Forgettable names are those of people (like O’Brien Web Design), those that include geographic terms (like Westside Health Foods) and names that literally describe a product or service (like Appliance Sales and Repair, Inc.). Remember, you want to distinguish yourself from your competitors.
- Your name should be appealing and easy to use. Choose a name that’s easy to spell and pronounce, and that is appealing to both eye and ear. Try to pick a catchy name that people will like to repeat. Make sure that any images or associations it evokes will suit your customer base.
- Avoid geographical names. Besides being easy to forget, and difficult to protect under trademark law, a geographical name may no longer fit if your business expands its sales or service area. If you open Berkeley Aquariums & Fish, for instance, will it be a problem if you want to open a second store in San Francisco? Especially if you plan to sell products on the Internet, you should think twice about giving your business a geographic identifier.
- Don’t limit expanded product lines. Similarly, don’t choose a name that might not be representative of future product or service lines. For instance, if you start a business selling and installing canvas awnings using the name Sturdy Canvas Awnings, your name might be a burden if you decide to also start making other products such as canvas signs or vinyl awnings.
- Get feedback. Before you settle on a name, get some feedback from potential customers, suppliers and others in your support network. They may come up with a downside to a potential name or suggest an improvement you haven’t thought of.
Is Your Proposed Business Name Available?
Once you’ve come up with some ideas for distinctive names, you’ll need to be sure you’re not stepping on an existing name or trademark.
As a first rule, don’t use part of a famous name and hope you’ll get away with it because you plan to use it in a different way, as in Microsoft Cushions, or M & M Marketing. If you attract the attention of the big guys, you’ll be threatened with a lawsuit and will most likely have to change your business name on all of your marketing material.
For not so famous names, you’ll have to do a name search to find out if the same name, or similar names, are already in use, and how they’re being used. If another company is using the same or a similar name to market different products and services, it may be fine for you to use the name for your business.
Finally, if your business is a corporation, LLC or limited partnership, in addition to checking for existing trademarks, you must be sure your business name isn’t the same as that of an existing corporation, LLC or limited partnership in your state. You’ll have to contact your state filing office to find out how to search their name databases. (See How to Form a Corporation for more on choosing and finding available corporate names and How to Form an LLC for the same information on LLC names.)
Is a Domain Name Available That’s Similar to Your Business Name?
If your business will have a website, you must decide what your domain name (the address used to identify your website) will be. Using all or part of your business name in your domain name will make your website easier for potential customers to find. Since many domain names are already taken, check what’s available before you settle on your business name. You can search for available domain names by visiting a domain name registrar such as register.com.
Registering Your Business Name
|Once you’ve chosen an available business name, you may have to – or want to – register it with the local, state or federal government, depending on your circumstances. If your business is organized as a corporation, LLC or limited partnership, your official business name should be automatically registered with the state when you file your articles of incorporation, articles of organization or statement of limited partnership. But no matter what type of business you have, you may also need to file a fictitious or assumed business name statement and register your name for trademark protection at the state or federal level.
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