Legal Niceties of Naming A BusinessBy Nina Kaufman, Esq.
Make sure the name you want is available, then register and protect it.
“What’s in a name?” Shakespeare wrote in Romeo and Juliet. “[A] rose by any other name would smell as sweet.” Many entrepreneurs would disagree. Since Adam named the animals in the Garden of Eden, we have understood the power of “naming.” That’s why new parents agonize over the right name for their babies. And entrepreneurs engage focus groups, peer advisors and branding experts to create a business name to capture their company’s essence.
If you’re planning to do business under a name other than your given name, you’ll need to register and protect that name. Here are two important steps you’ll want to consider:
- Is your name available? Another facet of availability has to do with your trademark plans. This requires some forward thinking on your part. Will you want to trademark your company name in the future? If that’s a possibility, definitely consider running a thorough trademark search before you file for your business name. You may be the only “Abracadabra Consulting” in New Hampshire, but if someone in another state has already filed that trademark with the United States Trademark Office, you won’t be able to. If you plan to create a website for your company (and who doesn’t these days?), you’ll want to make sure the domain name (ideally with the “.com” suffix) hasn’t been snapped up by someone else. From a marketing point of view, the more closely your domain name matches your business name, the better. If you find that many permutations of your business name have already been taken, you may want to choose a different name altogether. There are three aspects to determining the availability of your business name: registration, trademark and domain name. First, before you fall madly in love with your new business name, find out if anyone else is already using it. Unlike baby names, where you can have thousands of “Jessica’s” or “Joes,” you can’t have thousands of “Betty’s Bake Shoppes” in your state. Businesses must be registered with your state or local government, and those entities want to be sure there’s no confusion between companies. So will you. Make sure the business name is available before you design your stationery.
- Where to file? If you’re forming a corporation or limited liability company, your official business name is automatically registered when you make the proper filings with your state’s secretary of state (and pay the filing fees). Don’t forget to include your entity designation (e. g., “Inc.” or “LLC”) each time you use the business name, so you can take full advantage of the liability protections those business forms offer. DBAs are not just for sole proprietors, though. You can also file a DBA for your corporation or LLC. Why would you want to? As your company grows, you may find that the original name doesn’t adequately describe the range of products or services you’re offering. I’ve known entrepreneurs who have done this to distinguish the different lines of business they have developed under a single corporate umbrella. Here’s a perfect example: My client, Kathy Canfield Shepard, originally formed Canfield Design Studios Inc. to provide graphic design, web and marketing services to the arts, nonprofit and small-business communities. A number of years later, she branched out to create a line of stationery and gift items under the name The Swimming Paintbrush. Most recently, she parlayed her artistic talents into the sales of her fine-art creations under the name KC Shepard Art. For each new line of business, she filed a DBA with the secretary of state. Let’s say you have a “green light” to do business under a name other than your given name–“Sally Jones Creations,” as opposed to “Sally Jones.” You’ll have to register that business somewhere, and that depends on the form of business you choose. If you have a sole proprietorship (or general partnership), you usually have to file a certificate with your local county clerk. Because filing requirements can vary from state to state, make sure you know the requirements for your state. Business.gov has a handy online chart outlining those requirements. These certificates are sometimes called “fictitious name statements,” “assumed business or trade name,” or “DBA” (doing business as) filings.
Filings, agencies, government entities, paperwork–there’s a bit of bureaucracy to this process. You don’t have to go it alone. Align yourself with an attorney who understands the business formation process. Let her take this off your hands so you can focus on more profitable tasks.
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