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Business Law

The Legal Path to Registering Your Business Name

By March 1, 2017September 27th, 2021No Comments

Person typing on a laptop with people talking in the backgroundWe recently wrote about the difficulties of choosing the right name for your business (or product) and how names in the business world are critical to the success of your business. Finding the right name is one thing, but registering, trademarking, and protecting that name is another matter entirely. The only way to protect yourself (and your ideas) is to have the right information and take the right steps at the right time.

Reserving and preserving your name

Whether your company is established and seeking new markets or brand new and looking to take a bite out of market share, registering your business name in your market is an important first step. Registering your name prevents anyone else from using it, but this tool works both ways: the name you spent years coming up with might already be taken. If it is, it’s usually back to the drawing board. If not, it’s important to act quickly to make sure that name stays with your company.

Entrepreneur.com has a great article detailing the three primary ways to register and protect your business name. It’s worth a read, but we thought the main points would be good to mention here. The three best ways to protect your business name are:

  1. File a Doing Business As (DBA). The easiest (and fastest) way to register a name is to file a DBA with your state. In some areas, this is referred to as a Fictitious Business Name. Whether a DBA circumvents the creation of a formal business entity (for sole proprietorships) or simply creates an additional entity, it’s a great way to reserve your hard-won business name.
  2. Create an official business structure. While this is more involved than filing a DBA, it’s definitely the next step. Creating a separate legal entity (whether an LLC or a corporation) automatically registers your business name with the state.
  3. Get a trademark. From Entrepreneur.com, “If you want to get serious about protecting your name and brand in all 50 states, then you’ll need to apply for a trademark with the U.S. Patent and Trademark Office (USPTO). You’re not actually required to register a trademark. As soon as you start using a name, you get “common law” rights to that name. So why take the time to register? Registered trademarks enjoy stronger protection than common law marks. If you’ve registered your trademark, it’s going to be much easier to recover your property (for example, if someone starts using your company name as their Twitter handle).”

Of course, all of these methods assume that there is no other entity in the state (or country, in the case of trademarks) that is operating a business under the name you chose. There are tools to check your proposed name against a state or national registry that can avoid costly and painful delays in implementing your business plan. It can be difficult to secure the name you want, so it’s important to check its availability first, and then, if it’s still free, act quickly.

Established businesses may give names little thought, but if proper forms and fees aren’t filed correctly or paid at the right time, that business can wind up on the wrong side of a trademark infringement lawsuit. There’s nothing worse than being sued for infringing on your own brand. Fortunately, there are steps you can take today to make sure your company is protected.

Alex Gertsburg is a managing partner at Gertsburg Licata.  He may be reached at (216) 573-6000 or at [email protected].

Gertsburg Licata is a full-service, strategic growth advisory firm focusing on business transactions and litigation, M&A and executive talent solutions for start-up and middle-market enterprises. It is also the home of CoverMySix®, a unique, anti-litigation audit developed specifically for growing and middle-market companies.

This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney licensed to practice in your jurisdiction. If you have specific questions about your matter, please contact an attorney licensed to practice in your jurisdiction.

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