Are You Overlooking This Important Step To Naming Your Business Or Product?

11 Aug, 2021 By Bobby Klinck
Are You Overlooking This Important Step To Naming Your Business Or Product?

Naming your business and signature product is a crucial first step you need to take when building your online business. But before you jump in and decide on a name, you need to know a little bit about trademark law.

Think about the process you go through to come up with a name for your business or your product. First, you create a list of possible names. Then you ask your friends for their input. Next, you or one of your friends go into a Facebook group, set up a poll, and gather some suggestions from the members. Then you find something you like. 

This is how it typically goes. But you shouldn’t stop there. There’s one more important step that many entrepreneurs overlook.

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Don’t Forget This Step When Naming Your Business

When you finally have a business name you want to use, the next step is to make sure that you can legally use it. Skipping this step can land you in legal hot water.

Let’s say you start using a business name without checking to see if it’s trademarked. You put in time, effort, and money to build this business. Then you receive a cease and desist letter ordering you to stop your operation because someone else has already trademarked the business name you’re using.

Trust me: you don’t want this to happen to you. That’s why it’s critical to make sure you can legally use your chosen business name.   

What Is Trademark Law?

Trademark law covers everything that involves branding. It protects a word, phrase, symbol, product shape, or logo that helps identify the owner of a particular product or service. 

Let’s take Nike as an example. Their business name, company logo, and the “Just Do It” tagline have all been trademarked for that specific company.   

When you have a trademark right on a name, phrase, logo, or slogan, you can prevent others from using the same or a similar mark. They can’t use an identical or similar mark because it will confuse consumers about the source of the products or services. 

Trademark also means you can’t use a name if someone else is already using it. Be sure to check how similar the name of your business or signature product is to others and if you’re in the same or related area of commerce.

How Do You Get a Trademark Right?

There are two ways to get a trademark right.

Common Law Rights

Under this law, you automatically get rights to any name that you start using commercially. But it only provides limited protection. There’s also no central repository where you can check if someone else has rights to the name you want to use.

The United States Patent and Trademark Office

You can register a trademark in the US at the United States Patent and Trademark Office. When you register, you can indicate whether you’re already using the mark commercially or you plan to use it in the future. You’ll pay around $225, and it takes a few months to process. 

Registering a trademark offers various benefits. You get nationwide protection, and it’s incontestable for the entire duration of the trademark.  

While you can go through this on your own, it’s better to hire a lawyer who can help you file your trademark application. You can rest easy knowing that an expert who knows the process, in and out, is taking care of this for you. You’ll get that peace of mind because your lawyer will make sure that your trademark registration is done right.

Notice and Symbols

You don’t have to give notice to people that you have a trademark. But if you do, the person who uses your trademark can’t claim to be an innocent infringer because you’ve issued a notice in advance.

As for symbols, TM is for trademarks while SM is for service marks. When you use a TM, you’re saying that you believe you have trademark rights but you have not registered your trademark yet. 

Once you have a registered mark, you’ll see a circle around it. You can’t use that unless the US Patent and Trademark Office has already issued you a registered mark.

Common Areas of Concern Involving Trademark Law

Shortenings

Be cautious when using a part of a word and combining it with something else. For instance, words that end with “preneur” are often trademarked, which means you can’t use them.

Lingo/Common Phrases

Be careful if you’re using lingo or common phrases. Let’s take the word hashtag, which is a commonly used word in the social media space. If you name your show “The Hashtag Show,” you can expect to see several other shows that have the same name. 

This is where the problem comes up. You can’t use that name because the first person who used it first would have exclusive rights to it. So you have to think twice before using lingo or common phrases.

Puns

Puns are used by many people. If you use a punny name, you’ll most likely run into a problem. You’ll find a lot of other businesses that have the same or a similar name. With so many businesses already using puns, you’re better off choosing clear over clever.

Run a Trademark Search

How do you make sure that nobody is already using the name or mark that you’ve chosen for your business? By running a trademark search. 

Ideally, it’s best to do this before you launch your business. But if your business is already up and running, now is the time to do it.

The main reason to run a trademark search before you launch your business is so you can avoid disputes. It’ll prevent you from using a name or mark that’s already being used by someone else. If something comes up in your search, the simplest solution is to choose a different name so you can avoid disputes and trademark lawsuits that will cost you at least five figures.

You can do your trademark search in the registry of the United States Patent and Trademark Office. If you have not registered your name or mark, you can also search Google, domain names, and social media handles to see if they are available.

Keep in mind that a trademark is different from a domain name. An available domain name doesn’t automatically mean that you can use the trademark. Also, adding “the” to the front of a domain doesn’t mean you’re in the clear for trademark purposes. The standard you need to consider is whether your business or product name will be confusing to consumers.

Remember these when running a trademark search:

  • Remove articles
  • Widen your search
  • Check for obvious misspellings
  • Look for words with different spellings but sound the same
  • Check multiple pages, not just the first page, when you search on Google

When you’re sure that you can use the name, the next thing you should do is secure a related domain name and social media handle. Once you’ve done all these, the last step is to register a trademark for your name.

Represent Your Business Accurately

That sums up the process involved in naming your business and registering your trademark. Find a name that’s unique but is an accurate representation of your business, do a trademark search to make sure you can use the name, and register your trademark. When you’ve done all these things, you’ll have exclusive rights to use them in your area of commerce.

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Bobby Klinck

Harvard Lawyer and Online Entrepreneur