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Norton Law Corporation Blog Etsy Business Trademarks and Corporate Formation

How to Protect Your Etsy Business

The idea for this post came from a couple of different sources. First of all, I’m getting married in just over a month, and my fiancee and I have been ordering quite a few things from the handmade capitol of the world over the last few months. Secondly, I recently read an article a couple weeks back about Urban Outfitters, H&M, and Forever21 allegedly ripping off the designs from a number of artists on Esty—I’d post the link, but I forgot to save it (and in true lawyer fashion, I also can’t really comment on whether those companies engaged in that kind of activity). So I figured, why not make a post on how shop owner on Etsy can best protect themselves not only from liability, but from other companies leaching off of their great ideas and unique designs.

Now, it should be noted that Etsy’s corporate counsel, Hissan Bajwa, wrote a post a year or so ago about the various types of business entities an Esty shop owner could own, but I feel like he may have left out a few things and wanted to go into a little more detail. Keep in mind that everything in this post is merely general advice, and none of it should be considered legal advice since (for most people reading) I’m not your attorney and I’m not basing any of this article on specific, individualized, facts but merely general observations.

The Best Legal Structure for an Etsy Shop Owner

What the best legal structure is for your business is going to be a question for your own personal business attorney. That’s right, you’ll need to evaluate what you’re selling, whether you’re working with anyone else, and what the taxes will be like depending on the type of structure you’re interested in (and that’s also a good question for a CPA, as most good business attorneys will tell you).

Let’s Talk Sole Proprietors

With that said, I’ve been shopping on Etsy for a long time, and I know that for most of the seller out there, who are working part time crafting their wares, a sole proprietorship is fine. You’re doing business as yourself (or under an assumed name, for which you’ll need a “Doing Business As” DBA recorded pursuant to your county’s rules), and as a result, if you run a shop on Etsy, you’re already a sole proprietor. From a tax perspective, you and your business are one in the same, and from a liability perspective, you’re also one in the same—which an lead to you being held personally liable for any lawsuits that may pop up against your business. Do keep in mind that you may be able to protect yourself with liability insurance, but be sure you really know what your policy says.

In short, a sole proprietorship structure is easy to run (all the money just goes to you), easy to maintain (you don’t need any specific filings or documentation except for a DBA), easy to form (automatic as soon as you start doing business), but you need to watch out for the liability problems or you could get seriously burned (you’re personally liable for everything done in the name of your business).

So, in an incredibly general way, I’m going to say that for most Esty sellers, a sole proprietorship is all you need—especially if you’re just starting out and don’t want to invest a bunch of money into a business you’re not sure is going to work—unless you’re selling items that could injure someone, including vintage items, food products, beauty and grooming products, certain types of furniture, or anything that could injure someone.

Partnerships Are Just…Meh

Now, the question when you decide to start working your business with another is whether to form a partnership or one of the more “sophisticated” business structures like a corporation or a limited liability company (LLC). This might just be personal preference talking, but I’m not a fan of the partnership structure unless it’s absolutely necessary (which does happen in very specific circumstances which are way, way outside the scope of this article). Essentially, you and another person enter into a business partnership, at which point I always recommend a partnership agreement—seriously, if you’re partnered with someone and you don’t have a partnership agreement, call an attorney and get one drafted now, this very instant, I’m not kidding—when you start operating the business together.

A partnership is kind of like a sole proprietorship, but for two people. Same as before, they’re easy to run (just split that money as stated in your partnership agreement, or equally if you don’t have a partnership agreement), easy to maintain (again, just file for a DBA and that’s all you’ll need provided you and your partner are still getting along), easy to form (just start doing business with someone else), and as with the sole proprietorship, easy to get totally screwed if someone sues the partnership. And why you may ask? Because in a partnership, both partners are on the hook for the entire amount of any liability the partnership incurs. So if your partnership is sued, and your partner can’t or won’t help pay, you’re going to be stuck holding the bag (though in all fairness, you can try and get the money from her later).

My feeling about partnerships for Etsy store owners is this: if you’re doing enough business that you’re in need of a business partner, skip the partnership, spend the money and form a corporation or an LLC.

Better Liability Protection Comes at the Price of a Corporation or LLC

We come to the last two types of businesses for Etsy shop owners: the corporation and the LLC. Now, there’s only one type of LLC (unless you count LLPs, which are like LLCs and partnerships mashed up and only used in limited circumstances), but there’s a whole slew of corporation types, from C-Corp to S-Corp to B-Corp. We’re going to talk about a few pros and cons of all of them, but a somewhat more detailed study, you may want to check out my other articles on corporations and LLCs.

For a lot of small business owners, the biggest issue I run into with corporations and LLCs is that entrepreneurs don’t like to pay for them. Most of the time, as long as you do yourself a favor and stay away from the non-lawyer legal service providers you see advertised on TV, you’re going to have to shell out around $500 to $1000 to get a corporation or an LLC formed after attorney fees and filing fees with the state you choose to incorporate in. For some business owners, especially Etsy sellers who are just getting started, that’s quite a chunk of change, and you’re probably wondering what you get for that.

What you get for that is a lot more liability protection in case something goes wrong and your business gets sued. This means that if the business is sued, you’re most likely going to be protected. It also means that you have to keep up with a lot more busywork to keep your business going. Extra documents will need to be drafted, meetings will need to be held, a separate set of taxes will need to be done, and so on. But all of that comes with the big perk that if your business is sued, you and your family aren’t going to have to pay for the damages out of pocket if you lose—your business is solely responsible. And because of that big benefit of a corporation or LLC, if you’re selling products that run a higher risk of hurting someone, do yourself a favor and talk to a business attorney (most of us are free to consult with) about whether you should go the corporation route.

On top of the liability protection, some of the corporation types also give you extra benefits. For smaller businesses, I say stay away from the C-Corp structure unless you’re interested in securing some kind of venture capital investment. However, an S-Corp can help you save money on taxes, and a B-Corp can help you save money on certain supplies and other necessaries to keep your business running since having a (Certified) B-Corp shows the world that your businesses takes social responsibility seriously.

Protect Your Handmade Items from the Prying Eyes of the Big Companies

While the first part of this post dealt with how to protect yourself in the face of liability, the second part of this article will deal with how to protect your products from “theft” by the competition. At the outset, it’s important to know that not everything can be protected and a full on, proper protection scheme will cost you a lot more than you’re probably making selling your products on Etsy, but I’ll give you a few hints and tips on how to protect your products without breaking the bank.

Also, every industry has a preferred type of protection, wether it’s copyright, patent, trademark, or trade secret, so I’ll be touching on all types of protection.

Don’t Copy Me…I Have a Copyright

Copyright protection is automatic for things that qualify for it. That’s right, you don’t need to file any paperwork, pay any fees, or anything like that if your items qualify for copyright protection. However, obtaining a copyright for many types of products is simply impossible, and if you want to go after someone for money damages who has copied your work, you’re going to have needed to register your copyrighted item with the Copyright Office arm of the Library of Congress.

So here’s how copyrights come to be. They need to meet two main requirements: originality and fixation in a tangible medium. First, something needs to be original to be copyrighted. It doesn’t have to be super original, just mostly original. Second, it needs to be fixed in a tangible medium. Say what? That just means it has to be more than just an idea, it has to be “touchable” for lack of a better word. There’s also a third requirement: the item can’t be functional.

With the requirements out of the way, let’s talk about a few items currently on Etsy’s front page that may be able to qualify for copyright protection. Jewelry, clothing and accessories, photographs, paintings, furniture, and eyewear. That’s a pretty wide range of products, all of which may be available for copyright protection provided any individual item from a group of items like that is able to meet the requirements for a copyright.

If You’re Trading Goods, You Need a Trademark

Trademark protection is another great way to keep the big companies at bay and protect your products. First things first, I’m a trademark attorney, so I always recommend that if you’re serious about your business, you really need to spend the few hundred dollars to trademark your company’s name. You don’t have to spend extra to trademark a logo or a slogan, but do yourself a favor and trademark the name of your company to give you that extra leverage to fend off competitors who may try to leach off your success. And even if you’re not worried about that, at least have a qualified attorney perform a trademark search to make sure you’re not infringing on the trademark of another. Seriously, I’ve seen it happen before, and a few hundred dollars now can save you tens of thousands later.

With that out of the way, trademarks are designed to protect brands and make sure consumers know where any given item is coming from. Most notably, business owners register trademarks for the name, logo and any slogans used by the business, along with the names they use to brand their products. However, beyond that, certain characteristics of the products themselves may be eligible for trademark protection under what’s known as trade dress. Trade dress extends trademark protection to the decorative, non-functional, non-essential portions of a product, which makes it an excellent way to protect certain types of products. Here’s a few examples of where trademark protection may be applicable: watches, clocks, clothing, jewelry, eyewear, and accessories.

Patents are Patently Expensive

Patents are the third category of intellectual property protection, and to be perfectly honest, they’re way beyond what you’ll likely need as an Etsy shop owner. They’re usually incredibly expensive and take a long time to obtain, and I really don’t recommend patents for most small businesses.

Keep Your Recipes a Secret, a Trade Secret

The final type of protection for your products is trade secret protection. Purveyors of food products, beauty products, and other consumables, its time to listen up. Trade secrets protect the recipes and formulas you use to create your products, but they can also be used to protect things like customer lists, supplier lists, and pretty much anything that makes you different from your competition. The catch? You need to keep your trade secrets a secret. Don’t tell anyone you don’t need to. Make those you do tell sign a non-disclosure agreement. And if you write any of your trade secrets down, keep them under lock and key and only let others see them on a need to know basis.

A Quick Conclusion to a Long Article

At over 2400 words, I think this is the longest article I’ve written on my site, but there was a lot of information to cover and I hope you’ve learned a thing or two about how to protect yourself and your Etsy business. A few things to keep in mind in parting.

Sole proprietorship is probably fine for many Etsy shop owners, but not all, so call an attorney if only for a quick (free chat) about business structures if you’re worried about liability or interested in taking advantage of the perks of a corporation or LLC.

Copyright and trademark protection may be available for your products, but don’t just assume. As far as trademark protection goes, take a look at the (growing) database of common trademark questions for some quick answers on whether your product may be trademarkable. And if you have a product or service to add, let me know and I’ll give you credit for it.

Whether you’re a sole proprietor using a DBA or a full-fledged corporation, trademark your business name, or at least spend the money on a professional trademark search to make sure you’re not infringing on the trademarks of another.

And that wraps it up. Good luck in your endeavor on Etsy and I hope your business continues to grow into a huge success. And if you’re already a shop owner on Etsy, feel free to share your shop in the comments below.

Norton Law Corporation Presents a Post About the Business Documents Your Company, LLC, or Corporation Needs

7 Documents You Need to Keep Your Business Legally Sound

I’m always a little surprised when savvy business owners come to me to make sure their business is operating legally, only to find they’re missing a number of key documents. To be perfectly honest, a lot of the documents only matter if you’re in the process of expanding your business, going to sell your business, looking to take on investors, or you’re going to register your company’s securities with the SEC. But, that being said, if you want to save yourself a lot of headaches (and a lot of money having attorneys fix things that are horribly, horribly broken) before you take those steps towards growth and expansion, and if you want to protect you and your family’s interests in the most comprehensive way possible, it’s always a good idea to make sure your business’s documents are in order sooner rather than later. Without further ado, the documents you’ll need:

  1. Articles or Incorporation / Certificate of Incorporation / Articles of Organization: These documents have many names depending on where they’re being filed and what they’re being filed for, but they all have pretty much the same purpose—to let the Secretary of State (or the equivalent Division of Corporations) know your business is registered as a corporation or a limited liability company (LLC).

    If you’re incorporating your business in California, for example, you’ll need to draft and file the articles of incorporation. There’s a form, but if you hire a half-decent business attorney, they’ll draft you articles that actually apply directly to your business rather than shoehorning you into what the state’s template provides.

    The Certificate of Incorporation is the document you’ll need if you want to incorporate your business in Delaware. It’s very similar to what you might file here in California, with a few tweaks (and a different name). If you’re not sure whether you want to incorporate in Delaware or your home state (not necessarily California), I wrote a nice article on that a few months ago: Why Your Home State May Be the Best Place to Incorporate Your New Business.

    As for the Articles of Organization, that’s the document you’ll file in California to organize your business as an LLC. Of course, there’s also a form for that—and you generally have to use it.

  2. Bylaws / Operating Agreement: As with the documents above, these two documents have different names, but essentially do exactly the same thing. They help you determine the ground rules for how your business is run. Bylaws are used by a corporation (no matter what kind: C-Corp, S-Corp, B-Corp, etc.) to specify such issues as how large the board will be, where the initial office will be located, what powers the officers and directors have, how shares may be transferred, and how shareholders and directors can vote.

    Now, if you’re the sole shareholder of your own private corporation, you’re probably thinking why in the world would I want to spend a few hundred dollars on a document like this when what I say goes. And that’s a fair question, but here’s a fair answer: in some states, you have to submit your bylaws to the Secretary of State/Division of Corporations/Whatever they’re called in your state at the time time you register your corporation. Even if that’s not the case, some banks will want to see your bylaws before you open an account, the professional licensing organization of your state may want to see them if you’re running a professional corporation, investors will definitely want to see them before they send any money your way, and the buyer will want to see the bylaws when it comes time to sell your business.

    Oh, and if you’re passing your corporation on to your kids when you die, the bylaws can help them easily make the transition from your ownership to that of your kids without too many struggles (provided it’s drafted properly). And best of all, if you’re a sole shareholder of your company and you want to protect your family from liability if your company is ever sued, a set of bylaws can go a long way in proving your company is it’s own entity and not just your alter ego.

    For the purpose of this post, an operating agreement is practically the same as the bylaws, except they’re used for LLCs.

  3. Minutes from Meetings: You’re holding regular shareholder/director/member meetings, right? Right? Well, don’t feel too bad if you’re not. There’s a ton of small businesses out there where regular meetings means once every five years. But while you may not think that the minutes from your regular shareholder meetings are that important, in truth, they really can be.

    Here’s the thing. Imagine your business is going along smoothly when all of a sudden someone sues you for some screw up of one of your employees. Maybe they hit someone with the company car while they were en route to the job site. That person has a valid case and sues your company and you. Normally, if the company has caused some kind of wrong, all of the liability rests on them, but there’s a theory in the law called piercing the corporate veil which basically means that if the plaintiff (the person who’s suing you) can show that your company is no more than just your alter ego, they can go after your assets too to satisfy their judgment debt if they win. And here you thought forming a corporation or an LLC totally insulated you from liability.

    But how can you protect yourself from such an attack? Holding regular meetings and keeping records of them. It doesn’t matter if they’re shareholder meetings, board meetings, or member meetings (if you’re operating an LLC), just make sure you have them and make sure they’re properly documented.

  4. Trademark Registration Certificate: Strictly speaking, this isn’t required, but you should really get one. Seriously, you’ll save a lot of money down the road, especially if there’s already someone else using your trademark and you don’t know about it.

    No matter what kind of business you own, your brand is your most valuable asset. I’ve said it before, and I’ll say it again until I’m blue in the face.

    I don’t care if you’re a cruise ship operator with vessels that cost tens or hundreds of millions of dollars—your brand may be just that valuable. After all, when someone is looking for a cruise ship, they’re not going to trust a company they’ve never heard of, they want the Disney cruise experience or the Carnival cruise experience—not the “some guys we’ve never heard of with a huge boat” experience. So spend the money now and trademark your business’s name (and it’s logo too if the logo is really nifty and a part of your brand’s image).

  5. Employment Documents: Planning to hire someone (or a few someones)? You’re going to need employment contracts, an employee handbook, and independent contractor agreements at least. And you’d better make sure you know the difference between an employee and an independent contractor, because if you misclassify someone as a contractor who’s actually an employee, you’re going to be in a world of hurt. And at the very least, make sure you know whether your employees are classified as exempt or non-exempt.

  6. Distributor / Vendor / Service Contracts: From E-Commerce sites to plumbers, everyone needs basic contracts to help them run their business. Whether you’re distributing someone else’s goods or selling your own goods or services, it’s always a good idea to have your agreements properly documented—and that means in writing. Oral agreements, while technically enforceable in court, are always an uphill battle, so put your contracts in writing.

  7. Non-Disclosure Agreements (NDAs): Sharing your business information with others can be a good idea, but having them steal that information for their own uses later can be disastrous. That’s where NDAs come into play, when you’re showing off some aspect of your business to a third party (including your employees and independent contractors), you want to make sure they’re not going to divulge the information they’ve gleaned to another, or worse, use that information to further their own business interests. Just make sure you don’t give one of these to a potential investor (from a legitimate investment firm or VC) or you’ll look like a real novice in the startup and small business world.

After all of that, you’re probably thinking there can’t possibly be any more documents that may come into play during the life of your business—but there are. Copyright licenses, trademark licenses, commercial leases, industrial leases, equipment leases, retail leases, franchise agreements, term sheets, share purchase agreements, merger and acquisition documents, and the list goes on. As you can see, this was by no means meant to be an exhaustive list of what kinds of documents you need for your business, but it should give you a better understanding as to why hiring a business attorney sooner rather than later can save you a lot of headaches down the road. These documents aren’t going to write themselves, and only an attorney (or a very, very, very skilled businessperson) should undertake drafting, revising, and negotiating them.

Norton Law Corporation Trademark Infringement Fair Use

Using Another’s Trademark. Infringement or Fair Use?

I’m often asked whether a person’s use of a trademark is considered trademark infringement or if it the use is acceptable as fair use. The usual answer is…wait for it…it depends. That’s right, just like most legal questions, trademark infringement is often a variety of shades of grey without any clear cut black and white answer. As a result, whether something is considered trademark infringement is very, very fact specific, as you’ll soon find out. In short, unless you’re using the mark (or something incredibly similar to it) of another company to sell exactly the same product they are, then the answer to whether something is trademark infringement will remain the lawyer’s favorite answer: it depends.

Now, because this post is going to contain a bit of law and legal discussion, I’m going to need to bolster the standard disclaimer I have on the footer of every page on this site. The information contained in this post is not an acceptable substitute for hiring your own knowledgable trademark attorney to do a full-fledged analysis of the facts unique to your situation. If you try to analyze your use yourself, you have a very high risk of getting it wrong, getting sued, and owing a lot of money to the original trademark holder. I don’t want that to happen. You don’t want that to happen. So contact a trademark attorney if you are concerned about infringement.

With that out of the way, the common definition for fair use is a very straightforward one, and it comes to us straight from the Lanham Act (that’s the trademark law). Under that definition, fair use is the use of a name, term, or device, otherwise than as a mark, of a term or device that is descriptive of and used fairly and in good faith only to describe goods or services made or sold by a party, or their geographic origin. That’s a more readable version of 15 U.S.C. § 1115(b)(5) if you’re interested in checking the statute itself. In other words, you can use another company’s trademark to describe your own goods or services, but not as a trademark. Pretty straightforward, right?

Ready for an example? Fender, the guitar maker, has a very old trademark for their guitars and other musical instruments. However, if you own an auto body shop, you can still advertise that you can fix a car’s fender. It’s not trademark infringement because you’re using “fender” to describe your own services—fender repair in this case—and you’re not using it to confuse customers into thinking you’re making and selling musical instruments.

But there’s a second type of fair use in the trademark world, known as nominative fair use. This type of fair use is very similar to the type of fair use we see with copyrights. In essence, nominative fair use means you can use another company’s trademark for things like parody, news reporting, commentary, and comparative advertising. However, here is where the grey areas of the law start to appear. Something about all of this being based on case law instead of statute that tends to cause a lot of grey areas. There’s a variety of tests for determining whether something is nominative fair use or whether it’s just plain trademark infringement. Here’s a few:

  1. Is the product or service being advertised/commented on/parodied not readily identifiable without using the trademark?
  2. How much of the trademark is being used? More than necessary?
  3. Is the use of the trademark suggesting some kind of endorsement or sponsorship by the trademark owner? Disclaimers used to show no affiliation?
  4. Is the mark being used in a misleading way?

It seems that one of the common ways a lot of businesses try to get around the trademark infringement argument is to just slap a disclaimer on the use that specifies there’s no relationship between the user and the trademark owner. However, while that may score a couple of extra points towards the nominative fair use, it’s often still not enough. Especially when we all really know that nobody reads disclaimers, terms of use, privacy policies, or any of that other boring stuff on a website.

So let’s take an example from real life. A few years ago, Tiffany, the jewelry maker, sued eBay, the online auction site, for (vicarious) trademark infringement. They claimed that because sellers on eBay were selling counterfeit Tiffany items and that eBay was advertising sellers were selling Tiffany items meant that eBay was liable for trademark infringement. The court in the case ruled eBay’s use was protected as a nominative fair use. Why? Because eBay was merely describing that there were Tiffany products available on their website, nothing suggested that eBay and Tiffany were affiliated (as if they were in an authorized distributorship arrangement), and eBay did not know in advance which items being listed were counterfeit. eBay, it should be mentioned, also seems to take a number of steps to remove any counterfeit items from its listings. As a result, eBay was found not liable for trademark infringement. Here’s the case citation if you’re interested: 600 F.3d 93 (2d Cir. 2010).

Oh, and before you decide to use another’s trademark on your website or in your advertisements, be sure to run it by your trademark attorney first. At least you can use the argument (if you get sued) that the trademark infringement wasn’t willful.

I’ve Just Received a USPTO Office Action! What Should I Do?

An Office action can be a scary thing for a would-be trademark owner. You think the registration process is going along fine when all of a sudden, you get this letter from the USPTO, the United States Patent and Trademark Office. Inside, much to your dismay, is not a registration certificate for your trademark, but a letter detailing exactly why the USPTO has refused to register your mark.

Before we get into any information about Office actions, a few words about this post. This is designed as an incredibly basic overview of what a USPTO Office action is, what you should do if you receive one, and the deadline for response. The details of the two types of Office actions—procedural and technical—are reserved for another post, as are what you should do if the USPTO’s examining attorney denies your application even after you feel you’ve responded to the Office action with sufficiency. Here, we’re just going over the very basics of an Office action and what you need to do about it in very general terms.

So what exactly is a USPTO Office action? Well, it is essentially a letter that outlines the procedural or technical shortcomings that have prevented the USPTO from continuing with the registration process for you trademark. These can happen to anyone, regardless of whether you have hired a trademark attorney to help you with the registration process, or whether you’ve decided to go it alone and submit the application yourself. Sometimes, the deficiency in the application can be so minor that the examining attorney at the USPTO may just call you (or your attorney) to see if they can fix the problem over the phone. However, any type of major shortcoming in the application will warrant the USPTO actually sending you a letter Office action.

Now, if you receive an Office action, you need to keep in mind that you’re suddenly put on a very strict schedule for response. As with everything else with the USPTO, dates are of the utmost importance—first use in commerce, renewals, and of course, Office action response dates. As a result, you need to keep in mind that you have six months to respond to an Office action. If you take longer than the six month window to respond, your application will be deemed abandoned and you’ll have to start all over with the registration process—fees and all. While there is a two month grace period beyond the six month window, you really need to make sure you make it within the six month deadline, as that should be plenty of time to respond.

After you receive an Office action in the mail, and you’ve read this post, the only question that remains is whether you should try to respond to the USPTO Office action on your own, or enlist the help of a trademark attorney.

Image Courtesy: anieto2k

How to Pick the Perfect Name for Your Business

What’s in a business name? A lot, surprisingly. And it’s something far too many entrepreneurs fail to dedicate time to when starting a business. Sure, in the mind of a team putting together the next great internet startup, a name doesn’t really mean much when there’s the big picture things to think about: the business plan, the coding, and the website design and functionality. But a business name is something that should be at the forefront of any businessperson’s mind from the moment they take that first step toward incorporation. Hopefully this article will help to shed some light on the importance of picking a great name the first time—lest there be unforeseen repercussions down the road.

To many, the name of your business is just the thing you wrote down on articles of incorporation or the articles of organization at the time you formed your business. Maybe you spent a few minutes thinking about it—maybe you spent a few hours. But the real question is: Did you consider the branding implications, the marketing prospects, and the complete integration of your business around your name? Didn’t think so.

You see, the name is more than just the name of your business entity. For many entrepreneurs, it also extends to everything their company produces. The website address, the product name, and (what unfortunately becomes a sticking point for many businesses later on) the trademark. Because so much hinges on the business name, you want to make sure you get it right the first time. Changing a name because of trademark issues can be detrimental to your business—and having to settle for a less-than-perfect website address can spell doom for an entirely web-based startup.

So what should you keep in mind when naming your new business? Here are a few questions you need to ask yourself when choosing a name for your business.

  • Is Your Business Name Already Taken? When you decide to form a business entity, you’re going to have to register with some Secretary of State office. At the time of registration, there may be another company with your chosen name—at which point you’ll have to come up with a new business name. Instead of thinking you’ve found the perfect name from the beginning, why not save yourself from disappointment by picking a few possible names and ensuring they’re not already taken in your chosen state.
  • Are There Any Laws Against The Use Of Your Chosen Business Name? Some states have laws regarding what can or cannot be used in a business name. Generally, these laws are designed to prevent use of deceptive business names, but additional laws could cause problems too, so make sure you read the applicable rules and regulations regarding business names before you try and register.
  • Is A Domain Name Available For Your Business Name? Chances are you’re going to want a web presence for your business at some point. Do you really want to have to resort to a .net or .biz domain name? Or worse, has someone registered all of the top level domains for your chosen business name, leaving you to register a domain name that only vaguely resembles the name of your business.
  • Is The Business Name Able To Be Trademarked? This is a big one for companies that want to protect the goodwill associated with their name (which should be every company). If you’ve chosen a name for your business that can’t be trademarked, you may have a tough time trying to protect your business down the road. And if you’re taking your business around the world, make sure you can trademark your business name in places beyond just the United States. This applies to product names, too.
  • Will The Business Name Subject You To Trademark Infringement Claims? Have you decided to name your new company something deceptively similar to another company that already has a very strong presence in the field? If so, you may be inadvertently subjecting yourself to trademark infringement claims. Not a good thing. Make sure you’re not picking a name that is clearly designed to sound incredibly similar to your competitors.
  • Does My New Business Name Mean Something Weird In Another Language? This is kind of silly, but take a page from Ikea when naming your business (and your products) and try to make sure the name isn’t some vulgar word or phrase that could get your company into trouble when you branch out to foreign markets.

But, if you only take away one thing from this article, make sure that when you come up with your business name, you make sure your name is unique enough that you’re not infringing on anyone’s rights.

Image courtesy: Waag Society