One of the biggest misconceptions we see is that an available business name is the same as a cleared trademark. It isn't. Business-name availability and trademark rights are two different issues. Here are five things every business owner should understand before building a brand around a name.
1. Registering Your Company Name Is Not Trademark Clearance
- Registering an LLC or other business entity with a Secretary of State does not mean you are free to use that name as a trademark.
2. Why a Trademark Search Matters
Search before you invest in a brand.
- Before adopting a name, consider whether someone else has prior trademark rights.
- A clearance search can help identify potential conflicts before you invest in signage, websites, packaging, advertising, or a launch.
- And a Colorado state trademark registration is not a clearance search either. The Colorado Secretary of State is primarily a filing registry; obtaining a state trademark registration does not establish that your mark is clear of conflicting federal, state, or common-law rights.
3. It's Not Just Exact Matches
Trademark searching is more than searching your exact name.
- A conflicting mark does not have to be identical.
- The legal question is whether the marks are likely to be confused. This is important because people often think, “I searched the name and nothing identical came up, so I'm good.”
4. The USPTO Database Isn't the Whole Story
Not every trademark is federally registered.
- Trademark rights can arise through use, even without a federal registration.
- These are called common-law trademark rights.
- Therefore, a good clearance search may need to look beyond the USPTO database.
5. What Should Be Searched?
A trademark search may include:
- Federal trademark registrations and applications
- State trademark records
- Business and trade names
- Websites and internet use
- Industry-specific sources
- Other evidence of common-law use
Finding the name available in one database is not the same as clearing the name for use.
Final Takeaway
- Choose the brand carefully before you build around it.
- Changing a name after launch can mean changing your website, signage, marketing materials, social media, packaging, and more.
- A trademark search at the beginning can help identify problems before they become expensive problems.