Embroker Team September 22, 2022 8 min read

Naming Your Business: How to Choose, Claim + Protect Your Name

Woman holding finder up to face pondering the prospect of naming your business

Naming your business can be more difficult than you first realize. A business name needs to be unique but still easy to pronounce, spell, and remember. It needs to have a clear connection to what your business sells, but it can’t be so directly related that it can’t be trademarked. On top of all of that, it also needs to be available to register at state and federal levels, and it needs to have a corresponding domain name that’s available, too. (No pressure, though!)

The key to finding the perfect name is to take your time. Rushing to claim the first name you think of can lead to time-consuming and expensive mistakes down the road, and skipping registration steps can leave you unprotected if an infringement case should arise. 

But don’t worry: we handled the hard part by bringing together all of the information and resources you’ll need for naming your business in a single simplified guide. Read on to learn how to find, claim, and protect a name that’s a great fit for your business. 

Naming Your Business

When brainstorming business name ideas, aim to settle on a list of at least 3-5 choices you genuinely like before starting the registration process. This way, if you find out your first choice isn’t available, you can move on to your second choice without having to return to square one.

Here are a few key tips to finding a great business name:

  1. Keep it simple. Your business name should be unique, but not over-complicated. Make sure it’s easy to spell, pronounce, and remember.
  2. Avoid naming trends. Steer clear of any startup naming fads, like the “missing vowel” trend used by brands like Tumblr, Letterboxd and Scribd. When these trends fade, you’ll be stuck with an outdated business name. 
  3. Don’t limit yourself. Avoid names that might stunt your growth as a company. For example, a company called “Nashville Shoe Co.” will have a hard time if they ever decide to expand their product line beyond shoes.
  4. Check for potential faux pas. Test out how your name looks as a URL or social media account name—a name like “Investors Talking” can become “investor stalking” when it’s all lowercase without spaces. Similarly, make sure the first letters of your company’s name don’t form any unintended acronyms.
  5. Make sure it’s available. Before you fall in love with a name, make sure it hasn’t already been taken. Do a domain name search, a trademark search, and look up account names on any social platforms you plan to use.

Trademark Rules for Naming Your Startup

After naming your business, securing a trademark isn’t a legal requirement, but it is a smart idea since a trademark can help protect your name from being copied or stolen by competitors. If you plan to trademark your name at any point in the future, you’ll need to make sure it complies with the necessary eligibility requirements.

Some things simply can’t be trademarked. These include names of living people (without the person in question’s consent), official flags and insignia of national, state, federal, or local governments, and inappropriate or offensive language or images. 

Additionally, a name must meet a minimum level of uniqueness to avoid infringing on existing trademarks. This standard is determined using a five-category system known as the “spectrum of distinctiveness.” The five categories are:

Fanciful

To be considered Fanciful, a name must use invented words with no existing meaning. An example of a fanciful trademark is Sony, which is a made-up word derived from the Latin word for “sound.” Other examples include names like Google, Verizon, and Adidas. This is the strongest possible level of distinctiveness.

Arbitrary

The second-strongest level is the Arbitrary mark, which uses existing words in a context unrelated to the word’s meaning. For example, Apple is an arbitrary mark because the company sells computers, which are unrelated to the inherent meaning of the word “apple.” Other arbitrary trademarks include Amazon, Sprite and Tide.

Suggestive

Suggestive trademarks make abstract reference to the characteristics of the product or service they represent. For example, the name Under Armour evokes an image of a body covering, or armor, that goes under other clothes. Other Suggestive trademarks include Coppertone, Hot Pockets, and Whirlpool.

While not as distinctive as a Fanciful or Arbitrary mark, Suggestive trademarks can still offer strong protections if they’re creative in the way they reference the product or service they represent. If the connection between the trademark and what it represents is too obvious, the mark runs the risk of becoming Descriptive or Generic.

Descriptive

Names that use words whose dictionary definitions are directly related to the product or service they represent are considered “Distinctive.” Distinctive names cannot be trademarked unless they have obtained a “secondary meaning” that clearly represents the specific company in question.

For example, American Airlines is not an inherently protectable name because its primary definition is simply “airlines that are American.” But when the airline filed for a trademark in 1948, it had been operating for over 20 years as the only airline with its name. “American Airlines” had become recognizable as a specific airline and therefore had a sufficient “secondary meaning” to be trademarked.

Generic

Names that are not distinctive enough to be trademarked are considered Generic. These are typically common nouns directly related to what the company sells. For example, a brewery named “Beer” or a bakery called “Bread” would not be eligible for trademark protection. Similarly, if Apple actually sold apples instead of computers, the company would not have been able to obtain a trademark for its name.

How to Claim Your Startup’s Name

Provided it meets the necessary criteria, your startup name obtains a common law trademark as soon as you start doing business. Common law trademark protections are limited to the geographic area of your business, so it’s wise to register formally unless your business is extremely local.

There are also other, non-trademark protections you can obtain for your startup name. Some of these are legally required, but most requirements vary by state, locality, and even type of business. We’ve broken down the basics below, but you can also use this directory to find the website for your Secretary of State office, which can provide the specific requirements for your business.

Entity Name

The name you use to set up business accounts and sign contracts is called your “entity name.” For example, Coca-Cola’s legal entity name is “The Coca-Cola Company.” Some states require businesses to register their entity name, but even if your state doesn’t have this requirement, registering your entity name can protect you in case another company tries to start using your name.

“Doing Business As” Name

If you register your business as a sole proprietorship, you’ll need to register a DBA or “Doing Business As” name. This allows a business owner to use their company’s name, even though legally their assets and their company’s assets are not separate.

DBAs are less common among other business structures, but may come in handy if you want to operate your business or a portion of your business under a different name. Like entity names, DBA registration requirements vary by state.

Trademark Registration

There are two possible registration levels for a trademark: state and federal. If your business only operates within state lines, you can choose to register your trademark with the state trademark office. If your business operates nationwide, you’ll need to register with the United States Patent and Trademark Office. Trademark fees vary according to a number of factors, but the baseline cost of registration ranges from $250-$350.

Domain Name Registration

Claiming your domain name right away protects you from falling victim to “cybersquatters,” or people who find out about new companies and register related URLs in order to ransom them. Since domain names aren’t expensive—you can register them for as low as $10-$15 per year—it’s best to claim your URL as soon as you’ve settled on your startup name. You can buy your domain directly from a registrar like Google Domains or GoDaddy, or you can streamline the website setup process by buying your domain via the content platform you plan to use to set it up.

What Happens When a Name Gets Stolen?

Whether you’re on the sending or the receiving end, trademark infringement and name conflicts can be stressful. Here’s what to do if you run into naming trouble:

If Someone Is Using Your Name

So long as you completed the necessary registrations when you claimed your name, you should have no problem protecting it from being used by others. If a local business starts using your name, contact the local government office where you registered your business and ask them to send the company a violation notice.

The U.S. Patent and Trademark Office doesn’t enforce trademarks, so if you find out your trademark is being infringed upon, you’ll need to take legal action. Start by having an attorney send a cease and desist letter, which gives the company an opportunity to voluntarily stop using your name. If they refuse or ignore your letter, speak with your attorney about filing a lawsuit.

If You’re Using Someone Else’s Name

If you’re the recipient of a cease and desist letter or violation notice, don’t panic—neither item is a legal summons, so you’re not in any serious trouble yet.

If you realize the sender is correct, you’ll need to change your name. If your startup is still young, you may be able to change your name completely without harming your brand identity. If changing your name will affect brand recognition, consider finding a unique business name that’s similar in concept but still legally distinguishable. For example, if your brewery was called HAUSTUS, you might change it to “Haus Brewing Co.” or “HAUSTUS Bottling Works,” both of which your target audience would still recognize

If you believe the sender is incorrect and you have rights to the name in question, collect any documentation you have including name registrations, trademarks and paperwork showing when you began conducting sales under the chosen name. Bring all of this information, as well as the cease and desist, to your attorney to review and help determine the best way to respond.

Keeping Your Name Clean

Your startup’s name is its lifeblood—it’s the first thing potential customers will know about you, and it will remain in consumers’ minds as they develop an opinion about your product and your company. A company’s name ties its brand identity together, so protecting it should be a priority.

Theft isn’t the only threat your startup’s name may face. Reputational harm can have a devastating impact on a company; one 2020 study concluded that global executives attribute over 60% of their company’s market value to its overall reputation. When creating your company’s risk management strategy, be sure to include a detailed plan for responding to potential PR problems. 

Companies are least likely to become embroiled in a PR scandal when their leaders conduct business honestly, treat employees fairly, handle mistakes efficiently, and are conscious of how their personal decisions reflect on the company they represent. Comprehensive D&O insurance can help attract top-quality executives to your startup, ensuring you’re hiring people who are least likely to put your reputation, and your name, at risk.

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