How to Pick a New Business Name That’s Legal and Doesn’t Suck

One of the more tricky aspects of forming a new business is picking a business name. Although it can be fun brainstorming a name that you hope will be the next “Google” or “eBay,” choosing a business name that meets all the legal requirements isn’t as easy.

There are a lot of aspects to this supposedly simple task – choosing a name, forming a corporation or LLC in that name, filing a fictitious business name statement (also known as a “DBA”), possibly registering a trademark, registering a domain name, etc.

It’s enough to take the fun out of coming up with your own new business name.

One of the reasons this process of selecting a business name is so difficult is because the law of business names contains numerous arcane legal terms which sound confusingly similar, yet have different meanings. The terms legal name, trade name, fictitious business name, DBA, corporate name, and trademark all have distinctly different meanings.

Another significant reason the law of business names has become so difficult is because the law has changed due to the development and success of the internet. Whereas once there were millions of small, local businesses worldwide who had no reach beyond the small confines of their town, today even a small Mom ‘n’ Pop store can have worldwide reach through their website. That creates tricky trademark issues with any business name.

If you are looking to pick a new business name, get a pen and paper ready because here’s all you need to do.

Brainstorm A List of Good Names

A good place to start is by brainstorming a list of descriptive names which would suit your business. Depending on how unique a name you want, you may not be able to use your first, second, or even third choice, so it’s a good idea to start with a long list of candidate names.

Choose Your Business Form

You should decide if you are going to form your new business as a corporation, LLC, or limited partnership, or simply a sole proprietorship.  The easiest way to avoid a bit of hassle is to register your business name when you file your articles of incorporation, articles of organization, or statement of limited partnership with the Secretary of State. This ensures that no other corporation, LLC, or limited partnership in your state is using or will be able to use the same name.

If you register a different name as your corporation, LLC, or Limited Partnership than you plan on using to conduct business, then you will later need to file a fictitious business name statement (keep reading and we’ll cover that further below).

You can search the California Secretary of State’s website for registered names of corporations, limited partnerships, and LLCs.

However, just because a name is available on the Secretary of State’s website, doesn’t mean it hasn’t been trademarked. So you still have to check for trademarks.

Research Trademark Registrations

The next step is you need to research trademark registrations through the U.S. Patent and Trademark Office. You can look to see if someone else has registered a trademark similar to your chosen names through the U.S. Patent and Trademark office’s electronic database.

If your chosen name is taken, you should move on to another name.  If you have chosen a name that hasn’t been registered as a trademark, it is fairly easy to register your trademark.

You don’t have to register a trademark, but there are many benefits to filing a registration.  Registering the name as a trademark proves ownership of a mark and provides others with constructive notice, and allows you to bring suit in federal court if someone else infringes on your trademark.  (Here’s a more thorough discussion of How to Trademark a Business Name.)

Determine if You Need to File a DBA

The next step is to determine if you need to file a Fictitious Business Name Statement.  If you are simply going to use your personal name or the name of your LLC or Corporation as your business name, then you do not need to file a fictitious business name statement. However, if you use your name plus “& Associates,” implying that there are many of you when there is just you, then you do need to file a fictitious business name statement.

Fictitious business name statements (also known as “DBA” registrations) are handled at the county level. The first step is to check out other DBAs which have been registered. Some counties, though not all, allow you to search for fictitious business names online. For example, San Francisco allows you to search for fictitious business name registrations filed in San Francisco.

You also need to renew your fictitious business name filing every five years.

Search Domain Names

OK, if the previous research up to this point hasn’t completely taken all of the fun out of starting a new business, then the good news is now you get to turn to a more fun part. It’s time to check and see if domain names are available for your website.

It’s actually much easier to find out if a name is being used for a domain than to find out if it has been trademarked. You can quickly go to GoDaddy.com and check what domains are taken. One benefit of registering the domain through GoDaddy.com is you can make your registration private for under $10 per year, which prevents people from being able to look up your address. Otherwise, your address is public.

Search Other Sources

In addition to searching domain name databases, you should also search other general sources of business names. Millions of businesses establish trademarks simply by using a name, rather than by registering it, so you can’t rely on just the U.S. PTO database or domain name registrations to uncover potential conflicts. You should do a general Google search and check phonebooks and industry associations to determine if there is an unregistered trademark that is similar or identical to your preferred name.  If so, you may want to pick another name to avoid the possibility of conflict.

If, after you’ve searched numerous sources, you find that no one else has taken your chosen name, then you can go ahead and use it.  All that hard work should hopefully avoid the potential for conflict in the future.

Now that you have a business name, here comes the hard part – actually making the business successful. And no matter how perfect your business name, that part is up to you.

 

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John Corcoran is an attorney with Plastiras & Terrizzi in San Rafael, California (Marin County).  He advises clients about real estate/land use, general civil litigation, and small business matters.  He can be reached at  (415) 250-8131 or [email protected]

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