How To Create Profitable Brand Names (And Stay Out Of Legal Trouble)

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A simple way to increase your sales while also growing the value of your business is by using creative names for your business, products, services, and strategies.

Have you ever noticed that some product names draw you in and make you want to buy them just from the name alone, such as “6-minute abs”, “Priceline – name your own price”, or “the 20 minute orgasm”?

By using memorable names for your company name and everything you offer, you can drastically improve your sales from just that one strategy alone. If you stop and think, it makes a lot of sense.

In fact, you can probably look around your house and find numerous examples of products that you bought because the name grabbed your attention because it described the exact outcome that you wanted.

You too should always consider using names that people will remember, and that make your product or service sound appealing. And then, as you build trademark rights in your brands, which I’ll explain more momentarily, you can also grow the book value of your company while you increase your sales.

Before you rush out and start using a name, it’s important that you choose a name that someone else doesn’t already own trademarks rights in for that particular industry. If someone else already has a trademark interest in the same name in a similar industry, then you could be forced to stop using the name in the future under the Trademark Laws.

In other words, you may invest a lot of time and money on your business cards, letterhead, web site, putting your name on all of your products, and so on. Imagine if you later have to change all of that or face expensive litigation. It could be very costly to have to totally change your company name and all of the accompanying materials that use your name after the fact.

So it is better for you to take a few simple steps up front to minimize the amount of risk you will have in such a scenario. Now there are never any guarantees in life, and it is always possible there could be a problem even after you do some basic research. But if you can follow some easy steps and identify some glaring problems right up front, then wouldn’t you rather know about them now versus later?

In this article, you will learn about a simple 4-Step Process you can use to help you choose a name for your business that is both available in your state, and that also seems to avoid stepping on someone else’s trademark rights.

But before we jump into the 4-Step Process, you first need to brainstorm on some names for your business and/or products. In brainstorming some names for your business, you will want to think about what message you want to convey with your company name.

And as I mentioned previously, it’s great if you can come up with catchy names that make people want to buy from you based upon the name alone.

Once you have your list of possible names, it is time to perform the 4-Step Process to determine which name is the best choice, if any.

(1) Search Secretary of State/Business Registrar of Your State

If the name you are researching is a company name, then you should perform this step to make sure the company name is available in your state. The reason this is important is because if someone else has already formed a company with a particular name in a given state, then no one else can form a company with that name in that state.

Here is how that works. The Secretary of State (or other business registrar in a few states) is responsible for managing business entities that are filed with the state.

For example, if someone else has already filed a business with the name Jones Consulting LLC, then you will not be allowed to file a business with that name either. You are typically restricted from filing the name Jones Consulting LLC, Jones Consulting Inc, or any other name that just varies by the entity type (LLC, Inc, LLP, etc.).

Thus, in this step, you should search the online business database of your Secretary of State/Business Registrar to see if the names you are considering are all available in the state in which you plan to form your company. If any of your possible names are already taken, then you should just cross that one off the list and just continue your research with the remaining ones.

(2) Search United States Patent & Trademark Office

The second step in choosing the proper name is to search to see if anyone else has a trademark registered with the United States Patent and Trademark Office (USPTO) that is identical or similar to your name.

Before you learn how to search the USPTO web site, you first need to understand a few basics about trademark law. This knowledge will come in handy in a few later steps too. Don’t worry, you will be able to understand this boiled down version.

The United States Trademark Laws give businesses certain legal rights to the names that they use to identify their company names, products, etc. Businesses start earning trademark rights by using that name in commerce. However, businesses can perfect their trademark interests by filing a federal trademark registration with the United States Patent and Trademark Office.

The standard for trademark infringement where you could face a lawsuit from another company later is whether or not a consumer would become confused between your business and theirs because of the similar names.

So there may be nothing wrong with having two companies called Company ABC, such as if the first one sells goods to the painting industry, and the second one is a pizza delivery company. In other words, if the industries are totally different, then there are times when it is OK for two companies with the exact same name to co-exist without any trademark infringement problem.

However, if the two names are in similar industries such that the same customer would be confused into thinking they may be the same company, then you could have a problem. The names do not have to be identical either.

For example, if someone has the name Joe’s Pizza, and another company has the name Joe’s Fast Pizza in the same area, then customers could still get confused into thinking they are the same company. Thus, you want to avoid any name that is the same or a similar variation to other business names already being used in your industry that would cause consumer confusion.

There is an exception to this general rule about companies being allowed to co-exist with the same name as long as the industries are different enough that customers would not get confused.

That exception is when the trademark has become famous, like Microsoft Corporation or General Motors Corporation. In those examples, owners of famous trademarks are given extra protection against anyone using that name, period. So if you were thinking about naming your company Microsoft Window Washing, forget about it. You would most likely be hearing from the boys in Redmond Washington (headquarters to Microsoft Corporation).

OK, so back to the procedural part of step 2 of this 4-step process. What this means to you at this point in your research is that you want to make sure that no one else has a federal trademark registration on the name you are wanting to use in your industry such that consumers would be confused. To answer this question, you will need to perform a search using the USPTO web site at uspto.gov.

If you find any similar trademarks registered with the USPTO, then perform the following analysis: Is that mark you found for a really famous brand, or are they in a similar industry such that your customers may also be their customers for similar products? If you answer yes to either question, then you should cross that name off your list to err on the side of caution.

As discussed earlier, if you find any trademarks on the USPTO web site that are similar to the name you are considering, then perform the following analysis: Is that trademark you found for a really famous brand, or are they in a similar industry such that your customers may also be their customers for similar products? If you answer yes to either question, then you should cross that name off your list just to avoid any possible problems with those companies.

Repeat the searching with other criteria to try and find names that sound similar but that have a different spelling. If you recall the examples we gave earlier, what matters is whether customers would be confused, so different spellings that still sound similar can also cause problems later if they cause customer confusion.

(3) Search State Trademark Register

The third step in this 4-step name selection process is to search the State Trademark database in the state(s) in which you plan to form and operate the company. Each state also maintains a trademark database for companies that have registered the trademark in that state. You should repeat the analysis described in step 2, but for your State Trademark Register. For any that don’t pass the test, mark them off.

(4) Search The Search Engines

The final step is to search one or more search engines such as Google or Bing to see if anyone else in your industry is already using the name. Use what you have learned in this module to assess whether a conflict exists such that customers would likely be confused. If so, cross that name off the list too.

Choose A Name From The Research

At the end of this process, you simply look over your list and see if any of your names survived the scrutiny, and if so, pick the one survivor that you like the best. If none of them survived this process, then repeat the process as necessary until you find one or more names that seem to meet these criteria.

It is impossible to find everything about every company, but just do some due diligence to try and track down those that are most obvious problems.

And again, if you also choose names that are catchy and make people want to buy from you, it can also increase your sales while also growing the value of your company at the same time.

So wouldn’t it be great if you could grow the value of your business while also eliminating the most common problems that could cause you to wind up in a lawsuit?

Just a few simple strategies can help you avoid the most common reasons that businesses wind up in a lawsuit or facing huge government fines.  Learn more about these simple strategies here.

*Originally published as Issue # 23 – September 6, 2011

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