Make Sure Your Proposed Business Name Is Available

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Now that you've picked the perfect business name, can you go ahead and use it? Not without doing your homework first. You must make sure that you aren't treading on someone else's rights to the name.

Trademark Law

To stay out of trouble, understand the basics of trademark law, which prevents a business from using a name that is likely to be confused with the name of a competing business. If you choose a business name that's too similar to a competitor's name, you might find yourself accused of violating the competitor's legal rights (called "trademark infringement" or "unfair competition"), and you could be forced to change your business name and possibly pay money damages.

There's only one way to ensure that you won't violate someone else's trademark rights: Do some digging to find out whether another business is already using a name that's identical or similar to the one you want to use.

Conducting a Name Search

Unfortunately, there's no one place to look when searching for conflicting business names. In large part, this is because a business can establish a trademark simply by using it -- and millions do just that. You must use different search tactics to hunt for both registered and unregistered trademarks. Here's how:

1. Quick Screening Search

Before you invest too much time and money in a formal name search, take a few minutes to quickly screen out some of the names on your list. Type a name you're thinking of using into your favorite search engine, such as Google or Altavista. You can quickly see whether someone else on the Web is using a similar name to market similar products or services.

2. Fictitious Name Databases

First check with your county clerk's office to see whether your desired name is already on the list of fictitious or assumed business names in your county. (In a few states, there is just one statewide fictitious name database -- if that's the case in your state, your county clerk will tell you.)

This list will contain names that you won't find in any other database -- usually unregistered trademarks of very small companies. If you find that your chosen name (or a very similar name) is listed on a local fictitious or assumed name register, you shouldn't use it.

3. Corporation, LLC, and Limited Partnership Name Databases

If you're organizing your business as a corporation, LLC, or limited partnership, you must be sure your business name isn't the same as that of an existing corporation, LLC, or limited partnership in your state. Contact your state filing office to find out how to search their name database. If your proposed name (or a very similar one) shows up in your state's database, you'll have to choose another.

4. Unregistered Business Names

The Internet. The Internet is a good place to start your search for unregistered business names. By using several Internet search engines, such as Google and Overture, you can quickly see whether and how someone else is using a specific name.

The Thomas Register. A particularly useful (and free) resource for finding unregistered trademarks is the Thomas Register website at www.thomasnet.com. It's a cross-industry database that includes hundreds of thousands of trademarks and service marks. But keep in mind that any particular list you use to search for unregistered marks, including the Thomas Register, is likely to be incomplete. It's best to use several different methods to search for unregistered trademarks.

Network Solutions. Another easy way to look for business names online is to go to the Network Solutions website at www.networksolutions.com and key in variations of the name you want to use. If another company has reserved a domain name that contains your desired business name, chances are you won't be able to use it, assuming the domain name qualifies as a trademark -- and it will as long as the underlying website is used commercially.

For more information on conflict between domain names and trademarks, see Nolo's article Domain Names and Trademarks FAQ.

5. Registered Trademarks

Finally, everyone starting a business, no matter how small, should search the federal trademark database to determine whether the name they want to use has already been registered with the U.S. Patent and Trademark Office (USPTO).

Avoid liability for "willful infringement." If you don't, and you use a trademark that's on the federal register and the trademark owner sues you, you can be liable for what's called willful infringement -- that is, knowingly violating someone else's trademark, even though you didn't actually check the federal database. Willful infringement carries more costly penalties than other types of trademark violations. Plus, it's easy to search for federally registered trademarks.

Use the USPTO's free trademark database. You can search for federally registered trademarks by using the free trademark database on the USPTO's website. To start, go to the USPTO's Trademark Electronic Business Center at http://www.uspto.gov/main/trademarks.htm and choose "Search." Then follow the instructions you see on the screen.

Check state trademark databases. In addition to checking the federal trademark register, it's a good idea to check your state's trademark database. The state register is often part of the secretary of state's office, though in some states it has a department of its own. You can also check one of several sites that search for trademarks registered in all 50 states, such as trademark.com or nameprotect.com. This is an especially good idea if you'll be doing business in more than one state.

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