Trademark Law and Naming Your Business

A trademark is a sign, mark, or indicator used by an individual, business, or organization to identify a product or service as its own and to distinguish the product or service from those of its competitors. A business name generally can be protected as a trademark under federal and state trademark law.

Trademark law is designed to avoid consumer confusion over the trademarks that businesses or other organizations use in connection with their goods and services. Stated briefly, trademark law makes it unlawful for a business to use a trademark (e.g., a slogan, a logo, a name) in connection with a good or service if that use is confusingly similar to another business's use of a trademark. To see how this works, imagine a consumer - Sally. If Sally buys a Dell computer, she can be pretty sure that the computer was made by Dell Computer and nobody else. She can take Dell's reputation into account without worrying that a knockoff company is making shoddy computers with the Dell logo on them because trademark law prohibits that kind of confusing commercial activity and it gives Dell the right to sue for money damages and an injunction if someone does it.

As a general rule, if someone in a similar field to yours is already using a particular business or organization name, you should not use it, nor should you use a name that would be confusingly similar. Traditionally, there was nothing to prevent someone from using a trademarked name in a completely unrelated field or industry (for instance, Delta Faucet and Delta Airlines) because there was no possibility that consumers would confuse one for the other. However, the emergence of something called "anti-dilution" law means that the owner of a "famous" trademark (it means pretty much what is sounds like) can prevent you from using it even in an unrelated industry. Therefore, it probably would not be a good idea to call a blog "Kodak News" or "McDonald'sBlog," unless your website is actually about Kodak or McDonald's (in which case you should read Using the Trademarks of Others section closely). Traditionally, the law also permitted multiple companies to use a given name in different geographical areas of the country, but the global nature of the Internet breaks down the importance of geographical isolation and makes it more likely that an Internet use of a name or trademark could be confusing regardless of where the brick-and-mortar businesses or organizations are physically located. Thus, you probably want to steer clear of a name that is the same or similar to a name used by someone else in your field, even if that person or organization is located far away from you.

The process of naming your business and securing trademark rights can be summarized in three basic points:

  1. Choose a name for your business. It should be distinctive, not generic, and should not be close to the name of anyone in a similar business. For details, please see the Naming Your Business: Choosing A Name Capable of Trademark Protection section.

  2. Search for others using your chosen name or similar ones. You should search the Internet and federal and state trademark databases, at the very least. You should not use the name if someone in your field or a similar one is using it. You may be able to use the name if someone in an unrelated field is using it, but you should try not to use similar logos, styles, or colors. For details, please see the Naming Your Business: Searching for Trademarks of Others section.

  3. Consider registering your chosen business name as a trademark. Registering a state and/or federal trademark has advantages. It is relatively cheap and easy to register a state trademark. Federal registration is more costly, but it is worth considering because of its nationwide effect. For details, please see the Securing Trademark Rights: Ownership and Federal Registration section.


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