ABA Family Legal Guide

Forming and Operating a Small Business

Starting a Business

Naming Your Business

What do I need to consider when coming up with a name for my business?

Of course, you want your business name to be catchy and compelling, hard to ignore and impossible to forget. We can't help you there, but we can suggest a few steps that will help you avoid hard-hitting "cease and desist" letters from somebody else's lawyer--the basic first step in dealing with infringement issues--that can result in your being forced to trash signs and stationery you can no longer use.

Do Some Research

There's no point in launching a business and finding out too late that someone nearby is using the same name, or one that's very similar. The best way to avoid this is to do an informal search. Look in telephone books in your area and business directories, and on the Internet by using www.google.com or another search service. Another very useful starting place is the U.S. Patent and Trademark Office website, www.uspto.gov, where you can check, for free, whether anybody has registered the trademark you want to use for your business. You can also check with the county or city clerk in your area, or your state's secretary of state. These officials maintain a list of business names that have been filed.

Register Your Name

If you plan to do business under your name--and your full, legal name--then you may not need to register your business name with the authorities. This applies also if you form a separate entity--that is, a limited liability company or corporation--and use that entity's actual name as the name of your business. As long as you use the full, legal name of the entity as the business name--Smokey Joe's Smokin' Ribs, Inc.--you may not have to register the name. But if Smokey Joe's is owned by Ozark Lakes Restaurants, Inc., then you'd have to register the name of the business.

So if you plan to use a business name that has no part of your name or your business entity's name ("Comet Café") or only a part of it ("Cory's Creations") then you need to file what's known as a fictitious business name, assumed business name, or doing business as (DBA) name with the clerk in your county or city and your state's secretary of state.

This filing--sometimes coupled with the requirement that you publish the fact that you are doing business under this name in a newspaper in your area--puts the world on notice that Cory's Creations is your business name. Filing gives you the right to conduct business under that name--like advertising under that name, or using it when filing for permits, billing customers, paying taxes, and so on. In legal terms, it's your trade name.

But that doesn't mean you're totally off the hook. Even if your name really is Wendy, and there are no restaurants with "Wendy" in their name in your area, and you register "Wendy's Burgers" with the county clerk, you're still going to draw the attention of Wendy's International, Inc. That's because they own the trademark "Wendy's" and very probably can force you to change your business name. (See "Trademarks" on page 504 for a further discussion of this issue.)

Sometimes registration is good for only a set number of years, after which you must renew the registration. In some states, you could potentially face criminal charges for not filing your business name.