Don’t Launch Your Brand Without Doing This First

Naming your business is one of the most fun early-stage activities of entrepreneurship. You put a lot of thought into the impression the brand name will have on the consumer and what it means to you and your co-founders. You imagine how it will be the umbrella for all the ideas you have for the future, and even the ones you don’t have yet.

Before you get 100% set on that name, here’s tips and a step-by-step guide from a business and trademark attorney on how to make sure you can use that name (hint: it’s more than a Google search) and why you do want that certainty.

If you’re serious about building your brand, a trademark search is in order.

Why Check?

The short answer is trademark infringement. Owning a trademark (aka “mark) means its owner can stop others from using that mark or one that is confusingly similar. The point of a trademark is for consumers to be able to see a name, logo, or phrase and know from whom they are getting the product or service. They allow you to build brand recognition over time.

When you see Coca-Cola®, you know who is making it and what the quality and flavor is going to be. When you see Charmin® toilet paper, even though you might not know it’s made by Procter & Gamble®, you know it’s coming from the same seller every time. This type of certainty is good for consumers and business owners alike.

If someone were to try and sell Cocaa-Cola in a red can, they would very likely get a swift cease-and-desist letter from Coke®’s legal team. But why? Because trademark law covers more than exact name protection, it extends to barring names that would likely be confusingly similar to consumers.

Launching a brand with a name that can be confused with another can cost you time and money down the road. You don’t want to have to re-brand your website, packing, and podcast because you thought owning the domain, LLC, or Instagram handle was enough.

For this article, let’s use the fictional example of a founder wanting to launch a brand called Moodboard Frame. It will be a creative content studio offering marketing, branding, and support for lifestyle and wellness brands. Business plans include providing digital templates, online education, home-office background design, and curated physical goods like leather-bound planners.

Pre-Launch Checklist

1. Start by searching for identical names via your web browser. Is someone using the exact name that you want? Are they in the same industry? While someone using the exact same name is not an automatic disqualifier, it is a huge red flag. If the other business is in a different market, you will probably be in the clear even if it’s the same name. Moodboard Frame coffee shop would not present a barrier to our fictional company.

Let’s say Moodboard Frame searches the web and there is no company called Moodboard Frame out there. Many founders stop here to celebrate, thinking they are in the clear, but do not stop here! You also need to look for names with a similar sound, appearance, meaning, or overall commercial impression.

2. Search for similar names next. For example, Moodboard Frame would use search terms like Moodboard Co., Muudbord Frame, Mood Board Framers, Moodboard Studio, Mood Board Creative Agency, Moodboard Marketing, Frame Designs. Then, see what those companies are selling. Compare your current and future goods and services and whether those are in the “zone of natural expansion” for the other company.

Basically, is their name similar and are y’all in the same commercial spaces? Remember, the question is not, “are the names identical,” but “could a consumer think these businesses are connected?” If the answer is yes, you’re getting into potential infringement territory. If the answer is no, move onto socials.

3. Check social media sites. The process here is similar to the web browser search example. If the account(s) you find is selling similar goods or services as you have planned, the same rules apply. People often grab a social handle before they get a website up and running, and trademark rights arise from use. Essentially, just owning the handle is not enough, there needs to be use of a name, logo, or slogan in connection with selling goods or services. But, finding something similar to yours should prompt you to dig more.

4. Search for available web domain names. If you’ve made it to domain names, you’re doing great! There are so many ways you can vary a domain name that even if the exact one you want is taken, you will be able to think of something else. For example, moodboard.com might be taken by a coffee shop and moodboardframe.co might be taken by a garden center. Our Moodboard Frame, the marketing and consulting company, could come up with lots of other domain names and still not be infringing on either of those businesses.

The most important takeaway here is that domains are just addresses. They do not give you rights to the name! Trademark rights are generated by use in commerce selling goods or services in connection with that name.

5. Check business entity records via Secretary of State. I highly recommend forming a legal business entity in the state where you plan to operate. Get on that state’s Secretary of State’s website and find the search tool usually called something like “look up a business” or “entity search.” When you apply to open a business entity in a state, the state reviews the request and will only allow new business names that are not too similar to ones already in existence. Their analysis has nothing to do with similarity of goods or services, and only about name similarity.

So, if Moodboard Frame is registering in Florida to be an LLC and there is already a Moodboard Frame, LLC selling roofing equipment, then our Moodboard Frame will need to come up with a different legal entity name. MBF Consultants, LLC might work and then all the consumer facing branding could still be Moodboard Frame for the trademark. Even if Moodboard Frame, LLC was available, this is just a foundational step in corporate structure building. Our fictional company would still need to prove use in commerce connected with their goods and services to get trademark protection. Just like a web domain is only an address, an entity is just a structure.

6. Deep dive into the USPTO database. This is the most layered portion of the search that founders encounter. The United States Patent and Trademark Office (“USPTO”) is the government agency which oversees the use of names, logos, and slogans as trademarks. Search through the registry there using similar search terms to the web browser search. Here, you need to add another layer and check in which “class” a trademark is registered. Classes are basically categories of goods and services as yours and in related ones. So, you have to check in exact class matches, related ones, and those that are a natural expansion.

A lot of founders get tripped up here and don’t consider related goods and services. Pending and even dead applications should be considered, because trademarks can be revived.

Analysis Time

Typing search terms into boxes is the easy part. Analyzing it is where the rubber meets the road. There’s a lot that goes into a risk analysis. Beyond what has been discussed already, such as the similarity of your brand to another and relatedness of goods or services, a brand name is not a viable trademark if it’s generic or descriptive, deceptive, or fails to function. Those are all technical legal terms, but important filters as you pick a name that you want to grow with you.

Your brand name is not just a creative decision; it’s a business asset.

Notes on AI

AI can make mistakes. It’s great for brainstorming, organizing your search process, and spotting red flags. However, it has limitations when searching the USPTO databases and its analysis of how words or images might leave impressions on human consumers is lacking. AI hardly ever has the whole picture, AI doesn’t ask follow-up questions, and it doesn’t keep a finger on the pulse of our changing world and your evolving business.

Before you spend time and money on branding a website, printing products, and growing a customer base, consider a real analysis from a trademark attorney with industry specialized tools and knowledge to give you a deep assessment, risk analysis, and roadmap. Because being forced to rebrand is expensive, disruptive, and is not the vibe.

It’s not just about finding a name you like; it’s securing one you can grow, own, and protect.

How Can I Help You

I offer trademark searches that include a risk assessment and roadmap for filing. I’ll do all the heavy lifting with the USPTO filing, including customizing your product and service descriptions to your business, and communicating with the USPTO office on your behalf. I also offer post-registration protection services, including quarterly reports on anyone who might be infringing on your trademark and custom cease and desist letters to protect your brand. Importantly, I’m a human on your side. Get in touch for your assessment today!

This article is for informational and educational purposes only and does not constitute legal advice or create an attorney-client relationship. The information provided may not reflect the most current legal developments. You should consult a qualified lawyer for counsel tailored to your situation before making decisions.