Considerations When Naming Your Startup
In this day and age, choosing a corporate name is no easy task. After you think you have identified the perfect name that embodies everything your new startup stands for, your work has just begun. You then need to confirm that the name is available in the state where you want to incorporate, and that you can secure a URL that will allow your customers to find you. You also need to determine if you can use the corporate name without infringing on the trademark rights of others and finally that your name is likely to be eligible for trademark protection.
Name Availability in State of Incorporation
Once you have settled on a potential name for your startup, you should do a search on that name using the entity search feature on the website of the Secretary of State for the state in which you wish to incorporate. As far as the secretaries of state are concerned, entity names are determined simply based on availability. As long as no other entity incorporated or registered to do business in that state has the same or nearly identical name (for example, a Secretary of State would likely not permit both ABC Inc. and ABC Corporation to be incorporated in the same state), then you can register your entity under that name in that state.
After you have determined that your proposed name is not substantially identical to any other registered entities in the state in which you want to incorporate, you can secure your corporate name by reserving it with the Secretary of State of such state. In Delaware, you can reserve a corporate name for 120 days, and in Washington, you can reserve a corporate name for 180 days, both upon payment of a nominal filing fee. Reserving your name early will allow you to secure it while you work out the other aspects of your incorporation with your co-founders and your corporate legal counsel.
Name Availability for Registration and Use as a Trademark
Determining whether your corporate name can be used without infringing upon the trademarks of others, and whether you can file for trademark protection of your own corporate name requires consideration of not just third party company names that are similar to yours, but also third party product and service offerings that are similar to your company’s name.
Unlike the secretaries of state, who are concerned only with whether company names are substantially identical, the United States Patent and Trademark Office (“USPTO”) is concerned with whether similar or identical names or marks will cause confusion in the marketplace as to the source of the goods or services containing or being offered under such names or marks. When companies with substantially similar names operate in very different markets, the USPTO may allow protection for both because of the low risk of customer confusion in the market place. Therefore, there may be a product offered (or a company operating in) an unrelated market or industry with the same (or substantially similar) name to the one you are contemplating for your startup, and the USPTO may afford trademark protection for your startup and the other companies using the similar marks in different markets.
Another consideration with respect to trademark protection is that while it can be obtained on a nationwide basis, protection from the USPTO is not global. Therefore, if you intend to do business in other countries, you may consider obtaining trademark protection in those countries in which you intend to do business.
An experienced intellectual property lawyer familiar with trademark clearance and registration issues can help you with these issues to determine eligibility for registration and protection of your name, as well as an analysis to determine the likelihood that your prospective corporate name potentially infringes the rights of others, together with assisting you with filing the trademark application in the US and abroad.