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Choosing, protecting your business identity

| Aug 21, 2015 | Incorporation, Trademark

This article originally appeared as a column for the Cleveland Jewish News.

One of the most important steps in starting a business – after identifying the good or service you are going to be selling, of course – is to select your name. Marketing a business is an art as much as it is a science, and a name is a descriptor as much as a reflection of your brand identity.

You may choose to simply use your own name. Or, you may choose something catchy, straightforward or creative. Whatever you choose, you will want to make sure it looks good, sounds good and evokes the image you are intending.

Once you have found that name that will look great on your business cards, it is time to do a little bit of legal legwork.

Check to see that the name is unique. Most businesses have an Internet presence nowadays and, even if a business does not have a dedicated web page, it is likely the name will appear somewhere online, even if only in an online phone directory. It is most prudent to do a quick Internet search to determine if the name you have so carefully chosen is already in use.

If someone somewhere has already used the same name you are hoping to, tread carefully. While opening up “Mom’s Restaurant” is not likely to ruffle many feathers, opening a “Katz’s Delicatessen” might. And, even if you are in the right, the battle can be long and arduous (just ask the owner of the domain.)

Trademark/service mark suits are expensive. Avoid them altogether by determining at the outset whether your name violates any registered trademarks or service marks. A search on the website for the U.S. Patent and Trademark Office will help you to find out if a similar name, or any variations of it, has been registered already.

Consider whether you should seek your own protection of your mark, in order to protect your brand. And, if you opt to get such protection, make sure your advertising materials or packaging – essentially, anything with your name on it – indicates that the mark is protected.

If you plan to incorporate your business or register it as some type of limited liability entity, you will need to check with the Secretary of State to determine if it is already in use. While similar names may be permitted, identical names will not. When this happens, small adjustments are often enough, but you nevertheless may opt for a different name altogether in order to differentiate your brand.

Finally, while you are at it, consider reserving an appropriate domain name or two early in the process. Some companies even go so far as to purchase domain names that represent the most common misspellings of their name, or those representing the most likely mistyping of the name. “Cybersquatting” is real. Federal legislation now exists to combat it, but you simply do not need the additional headache when you are trying to get your new business up and running.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.