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A Forgotten Factor in Selecting Your Business Name

Choosing a name for your business is an important step in the process of starting a business. Your company’s name, when the name you form your business under or your assumed name, is ultimately the cornerstone of your business’s branding. When you hear Nike, Adidas, Google, or Target, you know exactly what brand of products or consumer experience you’re getting because these brand names are so recognizable. Companies’ identities start with their names.

When you hire the typical business attorney to incorporate a corporation, register an LLC, or draft a partnership agreement, most business lawyers will just run one name search for the business name you want on the state’s business entity search site to see if it is taken or not, and, if not, then they will proceed with forming your entity.

However, a business attorney searching a name with the New York Department of State, for example, does not protect your company’s identity or brand. While the name you want for your business may be available to register, you may still be precluded from using it in an actual business or trade if it infringes on another’s trademark rights.

What Is a Trademark?

Trademarks can be a word, phrase, symbol, design, or a combination of the mentioned things that identifies goods or services. There are common law trademark rights, associated with unregistered trademarks and rights associated with registered trademarks. Whether or not a trademark is registered, it would do any business owner good not to risk infringing on the rights of another, but how do you figure out if you can use the brand name you want or not?

Establishing Your Brand with an Experienced Business Attorney

The best course of action is to retain an attorney who is proficient in trademark searches and registration who can both search registered trademarks and the public domain to ensure that you are choosing a name which you will be able to openly use in your business.

While it may sound easy, and at Suri Law we certainly encourage clients to Google the names they are interested in using before bringing them to Ms. Suri, trademark searching requires legal skills and is a very technical process. A good trademark attorney can save you from a very serious lawsuit down the line which could cost you time and money.

It is not uncommon for companies to choose a name, form their companies, then produce their products with the company name on it before they call a lawyer to ask about registering a trademark for their name. Unfortunately, it is also not uncommon that at that point, that the business finds out it cannot use the chosen name because it would either infringe on the common law or registered trademark rights of another. The best thing anyone getting ready to start a business can do is think about a few different names they want for their company and/or products, run basic searches on Google and Amazon, and then, assuming they don’t find any cause for concern, bring those names to their attorney to be vetted before investing time and money into a name that might not be available. Typically, we recommend clients conduct trademark searches before forming their entities to be safe regardless of their industry or entity type, even if they never intend to register a trademark.

Most attorneys who do not work with trademarks do not consider these issues before forming an entity for their clients. Typically, an attorney would not go past just verifying the legal requirements for the availability of entity name is satisfied before proceeding, unless a client expresses interest in registering a trademark. However, the best way to protect your company and the brand you are building is to make sure that the name you choose wouldn’t infringe on any other company or brand’s trademark rights.

If you are interested in starting a business or forming an entity, please feel free to contact Suri Law for a consultation. Call us at (212) 444-8244.

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