Choosing a company name might be the most complicated “simple” decision you ever make as a founder. In this article, we’re going to help you avoid naming it twice.
When founders agonize over a company name, they are usually thinking in terms of branding and marketing. But even if you solve all of the branding dilemmas, you may end up being unable to use the name. The primary reason is that other companies may have a claim to the name’s use in a way which prevents you from using it. Take these three steps to make sure your name isn’t taken:
Type the Name in Google
Or Bing, or DuckDuckGo, or whichever search engine you prefer. As simple as it sounds, this is often the quickest and easiest way to rule out company names which might belong to someone else. Take note of the search results that come up: is there another company that shows up? If so, there’s a good chance that they have paid good money for Search Engine Optimization, which can also be a clue that they are actively taking steps to protect their name. Federal trademark protection, which we discuss in step 3 below, allows a company to diligently defend its name across all fifty states, and running afoul of that protection can create headaches for founders. Searching a state’s Secretary of State website for name availability varies because each state’s website is different. To give you an idea of how it might look, check out Delaware’s search page.
Check the Secretary of State’s Website
All companies have to register in at least one state. This is called the state of incorporation. Many technology companies register in Delaware, so we’ll use that as an example. In Delaware, no two company names can be identical. Delaware requires only that a name be able to “distinguish itself” from other names in the Secretary of State’s database of names. Delaware is, fortunately, more permissive than other states in allowing names that are very similar to each other.
Search the Federal Trademark Database
Receiving federal trademark protection can provide a powerful tool to distinguish your company’s brand, but the trademark application process itself can be an expensive and lengthy process. For this reason, when a company receives approval of its trademark, you can expect that it will use the full force of the law to make sure it isn’t used by a competitor. Even if your business doesn’t directly compete with a trademark holder, names which are too similar to another won’t be eligible for registration by the USPTO. If you think trademark protection would be beneficial to your company – for example, if you are trying to market your product nation-wide – then determining a trademark-able name early on will save you the hassle of changing it later, after many contracts have been signed and much money has been spent on advertising. If you’re not familiar with how to search for existing trademarks, you can go to this USPTO page which will allow you to perform a basic word search. Keep in mind that this will give you only a rough idea of who may have registered a name identical to yours. If you’re considering a trademark application, reach out to Matt Shrimpton for a more comprehensive discussion.
Choosing a company name is a critical and exciting part of the first steps in forming a startup. Because we understand that founders won’t always involve attorneys when selecting a name, we recommend having at least two or three alternative choices at hand, in case you find that a company has already claimed your first choice. When in doubt, you can always reach out to the attorneys at Peak for guidance.
This article is for informational purposes only, and may not be considered legal advice.
Bob Baker
Partner
Bob Baker is a founding partner of Peak Corporate Counsel. He has worked with numerous founders on a variety of issues specific to startups. When he’s not advising innovators, he can be found at networking events, playing rugby, or hiking with his kids.