Q: I want to use a name for BBQ competitions and eventually a restaurant but an internet search shows at multiple companies using that name. How do you find out if the name has a copyright? Finally, would a different spelling allow me to use the name?
A: Let’s start with a little clarification of your question ... you don’t Copyright a business name. To protect the use of the identity of a business you use either federal or state trademark and registration laws.
The key factor to naming your business is that you don’t conflict in commerce with another business using the same (or a very similar) name that is properly registered. This doesn’t mean that there aren’t businesses operating with the same name throughout the country. As you have discovered by your Internet search it is common for there to be numerous businesses with the same name. What is important is that they don’t directly compete against each other. Simply changing the spelling of a name does not pass muster if it still conflicts with the identity of another business.
To keep out of trouble in naming your business let’s take a look at some basic rules. It’s important to remember that any business operated under a name other than the owner’s personal name is required to be registered in one way or another depending on the state rules where the business is operated.
The first rule is that a name with an ® next to it means that it has a federally registered trademark, so don’t even think about using it. If you see a TM or SM next to the name that means someone is claiming rights to the name but has not received a registered trademark. The use of TM or SM does not mean that you can’t use the name, but you want to do a trademark search for a federal or state registration might have been applied for. Because trademark rules are complex, if you want more information go to www.uspto.gov where you can learn more and also do a search for federal trademarks.
If the business name is not protected under a federal trademark the next level to check is with your state. If you have statewide business registration you can go to your state website and do a name search. If your state does not have online registration you can contact your secretary of state office and they will do a name search to determine if there is a business with a legal structure (such as a corporation) that uses that name. If you don’t have a conflict on the state level, contact your county records office to see if a business has filed a DBA (Doing Business As) in the same county you want to operate. If the name is still clear, you are open to use it.
Choosing a business name is an important decision and with the growth of small business and the Internet it is getting harder to find a name that is not being used by someone else in one way or another. The key to understand is that it is common and legit for businesses to operate with the same name, but you don’t want to get into a situation that you are in conflict with a “registered” business name. So, do your homework outlined above and there is a better chance you won’t get a nasty letter from an attorney for using the name of a business that is claiming exclusive rights to in your geographic area.
Another thing to keep in mind is that even if a business name is OK for you to use even though someone else is using it, you want to make sure that the business has a good reputation. For example, if the business name you like is being used by someone who serves the worst BBQ in the country, I don’t think you want to associate yourself with that name.
And one last suggestion. Because the rules for using business names can get a little complex, if you aren’t sure about whether you should use a specific name, talk with an
NASE business consultant. They can help you determine whether you might have a conflict.