3 Ways to protect your business name

Does your business name send customers to someone else’s business?

Your business name is the cornerstone of your brand. Promote it wisely, and each time it’s mentioned, your competitors will sink further into the background. Lose control of it, and you could be lost in the crowd.

The uber-popular Coca-Cola Company has always known this. Early on, the soda giant politely discouraged consumers from calling their product ‘Coke’ – a generic nickname associated with virtually every carbonated drink on the market. They aggressively pushed their preferred moniker into pop culture with slogans like “Coca-Cola: Ask for it by its full name - then you will get the genuine.” And when they realized ‘Coke’ was here to stay? They trademarked the name to capitalize on its brand dominance. 

The lesson for any business owner is clear: If your company’s name is worth promoting, it’s worth protecting. Here is a checklist of considerations that will help you do just that.

Related: 6 Local marketing tips for small businesses

Make sure your business name leads customers to your business

Before you can protect (or promote) your company name, you have to control it. So your first step is to research the uniqueness of your business name. Your Secretary of State’s office should have a database of entity names that you can check. You might also want to Google the name to see what comes up -- ideally, not another business! Or you can pay for a professional search to be conducted by companies like LegalZoom or Incorporate.com, a Hiscox partner.

Another resource is the United States Patent & Trademark Office’s (USPTO) search tool. This online system runs your name through the trademark database to see whether there are other entities in the United States already doing business with your preferred name. 

Here are three ways to protect your business name. 

1. Make it official: Register your business as an LLC or corporation

Outside of your dreams and your business plan, where does your business have standing? One of the best ways to secure your business’s status in the marketplace is to register it as an LLC or corporation. You can start by seeing which state agency registers new businesses in your state. The Secretary of State’s office is generally a good starting point. Then, if you are planning to set up a storefront in other states, file in those states as well. The process may involve an initial filing fee and an annual renewal fee.

Find out more about how to tackle the process from the Small Business Administration.

Filing protects your business name from being appropriated by another LLC or corporation, either intentionally or by mistake. Once you successfully file, your state will only recognize one LLC or corporation with that name, unless yours and the competing business operate in such vastly different industries that there could be no confusion about their individual identities.

Related: 3 Reasons your LLC needs small business insurance 

2. Consider a DBA

Does your LLC cover all the bases?  Not quite. Did you know that there may be another business in your state – an LLC, a sole proprietor, or partnership - that goes by the same name?  It’s permitted  under the practice of using a “DBA” or “doing business as.” Also referred to as a “fictitious name,” a DBA allows a business to market itself by a name other than its proper name. The DBA paperwork is fairly simple and is filed on a state or local level. The only requirement is that the business owner announce the arrangement publicly, so customers (and competitors) know who’s behind the name. 

For example, if retired high school English teacher John Smith decides to market his college essay coaching business as “Let’s Write 4College,” he doesn’t need to file as an LLC or a corporation. He just needs to file his DBA and then publish an announcement that identifies his business as “John Smith DBA Let’s Write 4College.” His DBA will likely snag him a lot more customers than his name alone, no matter how legendary his teaching career.

Determine whether a DBA is best for your business

You may consider adopting a DBA to boost your own company’s marketability. Afterall, a DBA may be catchier than the utilitarian name you originally filed. And a DBA is great, if you are not quite ready to commit the time and paperwork to file as an LLC or corporation. With your DBA you can hang up a shingle and build a customer base before sinking yourself into a legal filing, though the DBA route will not afford you the protection of your personal assets that a corporation provides. LegalZoom and Incorporate.com can help you find out if your proposed DBA is already in use. 

Related: What is the difference between DBA, LLC and sole proprietorship?

3. Consider a trademark

If you want to eventually transform your startup into a national brand, it’s important that you defend not just your name, but your brand, from any confusion. 

Sure, your LLC has protected your business name from being scooped up by other LLCs in your own state, but what about the states or regions where you are planning to expand? Your clever name and logo might have inspired entrepreneurs in those other states to use your name -- as a DBA or as a corporate name. If you haven’t filed as an LLC or a corporation in those other states, there is little you can do to stop the grab. 

Except this: When you are researching and filing your business name, consider filing to protect it as a registered trademark that affords you exclusive rights of use through a nationwide system: the United States Patent and Trade Office (USPTO).

Trademarking your name and your brand

The USPTO oversees the registration of certain types of intellectual property – patents and trademarks -  a broad realm that includes your business name and its unique imagery (logos). Its purpose is to minimize confusion in the marketplace, so consumers, patrons, fans and the general public can clearly distinguish between different brands, products, and offerings.

If you formally register your logo and name as trademarks, your business generally will have the exclusive right to use them. In addition to your name, protected elements include the color, dimensions, imagery, font, and other symbols used in your logo. No other business will be able to use these valuable assets to sell the same or similar goods or services in the United States.

It’s worth noting an exception:  two or more businesses might be able to share a similar name if they are deemed to be in different industries and, therefore, are unlikely to be confused for one another. One famous example of doppelganger identities illustrates the principle: Delta Dental vs. Delta Airline vs. Delta Faucets. These three corporate giants peacefully co-exist in the marketplace while sharing the same moniker. After all, no one ever confused a well-financed root canal with a trip on a luxury jet or a bathroom make-over.  

Technically, trademarking is not very difficult. You can establish a trademark simply by using your business name to conduct your business (assuming no one else was using it first). Once you’ve staked your claim, you should make a habit of displaying the appropriate mark (TM for products; TS for services; ® when it is registered) whenever you display your business name. This will put your competitors on notice not to poach your marks. 

At the end of the day, however, you will gain more bullet-proof protection if you apply for and register a trademark with the USPTO.When applying for that trademark, note that:

•    The authenticity of your business name must be thoroughly vetted, minimally by consulting the trademark search tool provided by the government. Intensive research on the front end will prevent your trademark application from being stalled or rejected.

•    You must be prepared to demonstrate that product or service is not likely to be confused with another product or service. It’s worth familiarizing yourself with the USPTO’s standards for similarity upfront, as it is one of the most common reasons for application failure.

•    Trademarks are registered for goods and services within specific classes, as defined by the Trademark Identification (ID) Manual. Before you apply, identify the correct class for your product or service.

•    Trademarks offer 10 years of protection, after which they must be renewed. They can be renewed an unlimited number of times.

•    Be prepared to wait. Depending on a number of factors, the approval process for trademark applications can take as little as a few months to as long as a few years. 

•    The term ‘trademark’ is often used to describe the protection given to both goods and services. Technically, protected services receive a ‘service mark’ while protected goods receive a ‘trademark.’

Apply for your business trademark online

The USPTO offers two online trademark application options, both of which require you to set up a Trademark Electronic Application System (TEAS) account online. 

While the entire process is directly accessible to you online, many startups opt to work with an attorney to ensure that the background check is exhaustive, and the forms are correctly completed and submitted.

The USPTO has put together a TEAS application tutorial that will help you in either case.

You can apply for a trademark that you are not yet using, which can be a good idea, particularly if your offering is likely to be imitated. An applicant can file as a business that’s already using the mark, or as one intending to use it in the future. The first one in line with a trademark has a stronger claim to the mark than someone who files later. Just keep in mind that the trademark won’t actually be issued until it is used in interstate commerce. 

Do you need to also get a copyright or a patent?

Probably not, but it might be worth checking. Like trademarks, copyrights and patents are forms of intellectual property – also protected by the USPTO. But copyrights and patents cover different aspects of uniqueness. A copyright protects expressions of music, artwork, and writing from being copied or used without permission. A patent protects an original invention from being reproduced by another business or individual. A trademark protects a business’s logo and brand from being lifted, but mainly protects the public from buying counterfeit and inferior products masquerading under the name of a reputable seller.

Protecting  your business name might seem like a lot of work, but it’s one of the most valuable assets your business has. It’s worth taking the steps required to retain it. 

The contents of this article are provided for informational purposes only and do not constitute, and should not be relied upon as, legal or business advice.