You?ve brainstormed, polled your family and friends and conducted some kind of focus group testing. You?ve come up with a cool domain name. Finally, you?ve crossed one of the trickiest hurdles for any new business ? finding the right name for your new brand.
But not so fast. Before you unleash your name on the world, you?ve got to dot a few administrative ?i?s? and cross a few legal ?t?s.? There are three key legal steps in the naming process.
- Make sure the name is available.
- Register the name with your state.
- Register your property (a.k.a. the name) with the federal government.
Keep in mind that trademark law is complex. While this is a brief introduction to the steps involved, there are specific situations that may vary.
1. Make Sure the Name Is Available to Use
Before you start ordering letterhead and marketing material, you need to make sure your name is available in the state where you are planning to conduct business, and also nationwide. No one wants to find themselves on the wrong end of a trademark dispute. First, there could be punitive damages and legal fees to pay. And even more costly, you could be ordered to rename your company immediately ? putting you back at square one in terms of brand recognition.
- Before you incorporate or register your business with your state, check the state?s database of company names.
- At this point, you should also conduct a free trademark search to check if your business name is available to use at the federal level. The U.S. Patent and Trademark Office (USPTO) offers a free search tool to see if your name is available to use nationwide.
- It?s also important to know that you can still infringe upon someone else?s mark even if they?ve never formally registered it with the USPTO. For this reason, you?ll also need to do a comprehensive nationwide trademark search into state and local databases (beyond just your own state). This should include common law and county registrars. You can find affordable online services to simplify this task for you by performing a comprehensive search into state and local databases.
2. Register the Name With Your State
When you incorporate or form an LLC for your new business, the name is registered with your state?s secretary of state. Before approving your application, the secretary of state?s office checks that your name is distinguishable from all other business names registered in the state (just in case you didn?t search yourself in step one). Once approved, the business name is yours, and yours alone, to use within the state. This act protects anyone else from using your name within your state, but it doesn?t offer any kind of protection in the other 49 states.
If you?re not planning on incorporating or forming an LLC, you can still register a business name using a DBA (Doing Business As), which is also known as a Fictitious Business Name. It?s the easiest type of registration, and can be completed through your county government offices.
If you?ve started a business that?s physically tied to your state ? such as a hair salon or a restaurant ? and have no plans to expand into other states, registering your name with the state or county might be enough brand protection for you. However, if you?re planning to conduct business outside your own state (i.e. you sell a product or provide services to clients who live elsewhere), you should look into trademark protection.
3. Register a Trademark with the Federal Government
You?re not actually required by law to register a trademark. Use of a name instantly gives you common law rights as an owner, even without formal registration. However, as mentioned above, trademark law is complex. Simply registering a DBA in your state doesn?t automatically grant you common law rights; in order to claim first use, the name has to be ?trademarkable? and in use in commerce.
Registering a trademark offers a few advantages:
- Trademarks registered with the USPTO enjoy significantly stronger protection than ?common law? marks, or unregistered marks. When you register a trademark, it?s exponentially easier for you to recover your properties ? for example, if someone happens to be using a close variation of your domain name or is using your company name as their Twitter handle.
- A trademark is property ? it has value and can be sold as a corporate asset.
To register your business name, you?ll need to file an application with the USPTO. Expect to pay approximately $325 per class in application fees that your mark would fall under. Once you submit your application, the process can take anywhere from 6-12 months, so it?s smart to perform a comprehensive trademark search before starting the application process. If your selected name is not available, your application will be rejected. You?ll lose your application fee, not to mention any time invested in the application.
While the process of registering a trademark is more involved than registering a DBA, rights to your name will be enforced by both the federal and state governments.
Take the Right Steps
As you?re getting your company off the ground, make sure to take brand protection seriously. You?ve spent untold hours deliberating the ideal name, and you?ll be spending even more time cultivating brand recognition. Your name represents your brand and business, so take the right steps up front to protect your identity.
Image courtesy of iStockphoto, shironosov, Flickr, thinkpanama
Source: http://mashable.com/2012/01/23/register-business-name/
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