Coming up with a great business name is hard. Coming up with a great and unique business name is even harder. It’s not just new and small businesses that struggle either. There’s Apple, the turtlenecked tech giant, and Apple Records, the label founded by the Beatles. There’s Delta Airlines and Delta Faucets.
If you’ve landed on a name that captures the essence of your brand, it can be dismaying to find out someone got there first. Yet, all hope is not lost. If it’s good enough for Delta, it might be good enough for you, and there are some cases where you can share your name with a pre-existing business.
Of course, just because you can, it doesn’t mean you should. Sharing your name with another business could harm growth and brand recognition, even when you stay out of legal trouble. So let’s dive in and find out the ifs, whens and whys of: my name is being used in another industry, can I still use it?
When Can I Use a Trademarked Name for My Business?
The United States Patent and Trademark Office (USPTO) has 45 trademark classes — 34 for goods and 11 for services. Each class represents a broad industry or category. Now, the golden rule is that two trademarked names can’t exist within the same class. So, if you’re in a different industry from the other business, you may be able to use a trademarked name for your business.
However, there’s a catch. If you and the other business are within the same locality, customers might mix up both brands. In that case, you might want to think twice about using the same name. Plus, keep in mind that trademark laws can vary depending on where you are, so it’s always a good idea to do your homework on state regulations.
It’s always better to choose a unique name for your business to avoid confusion and avoidable legal squabbles down the road. However, there are scenarios and circumstances where using a trademarked name is permissible. Let’s look at a few of those.
- With Agreement and Legal Consent
In some cases, you can use a trademarked name for your business if you contact the trademark holder to obtain consent. This consent would usually be legally documented. The consent could also be as simple as a written agreement. Whichever the case is, it’s best always to seek permission or reach an agreement with the title holder before using a trademarked name. This is the only surefire way to avoid infringement issues.
After a history of trademark disputes, Apple Computers purchased the rights to the Apple trademark and leased them back to Apple Corp, the record label. This is how these two companies coexist, despite operating in overlapping industries.
- You’re in Different Industries and Locations
As we already stated earlier, if two businesses are in entirely different industries and geographical locations, they could use the same or similar trademarked names. Remember, so long as your business is serving a different market and location, the chances of competition or customer confusion are minimal. As a result, you’re good to go.
To return to our Apple vs. Apple example, there was no initial conflict because Apple Computers had nothing to do with the music industry. This agreement worked perfectly until Apple launched iTunes.
- There are Differentiating Factors
Are your services, products, target market, branding, and business model remarkably distinct from those of the trademark holder? If yes, then you might be in the clear. The key thing is to ensure that prospective customers can in no way mistake your brand for the trademarked business. Delta Faucets and Delta Airlines are unlikely to be confused, so both can coexist with the same name.
- It’s an Abandoned Trademark
If a trademark has been abandoned, or is no longer in use, it becomes available for others to adopt. That said, you need documentation to prove abandonment before latching on to the trademarked business name.
- With a Strongly Modified Name
Lastly, you can use a trademarked name if you make enough changes to the name that there is no possibility of confusion. This may be achieved by adding additional industry-specific names or changing the spelling, but the modifications must be significant enough to create a distinct, new name.
Can I Use a Business Name That Exists in Another State?
Business name registration procedures and regulations are handled at the state level. This means that a business name could be registered in one state but still be available for use in another. The exception to this is federally trademarked names, registered with the USPTO.
In the same manner, DBAs (Doing Business As) are also registered on a state-by-state basis. A DBA is a trade name or alias that is different from your business’s real name and can be used to sell your goods or services. As you can imagine, DBAs are an invaluable tool you can use to legally set up shop in a state where your legal or intended business name is already in use by another entity.
So long as a DBA is not trademarked with the U.S. Patent and Trademark Office, there is no legal blockade preventing you from registering it as your DBA in any state you want to operate in. However, even if a DBA name is available for registration where you plan to operate, choosing a name already in use by another company can still lead to potential confusion in the marketplace.
However, while there may be no legal barriers to using a name that’s active in another state, your prospective clients and customers could mistake your business with the existing company using the same moniker. This is more likely to occur if the other company has established some brand recognition in your target geographic region through publicity, advertising, or online presence that cuts across state lines. So, tread carefully when choosing a name that’s already in use.
There are Some Business Names You Should Never Use
Yes, it’s technically possible to register a trademarked name. But then, some names are simply not worth considering regardless of the industry, differentiating factors, location, peculiarity of business model, or other permissible reasons. I’m talking about iconic brands like Apple, Coca-Cola, Netflix, Disney, Samsung, etc., which are global household names.
These mega businesses have spent decades investing in and developing immense brand equity in their names. As a result, they fiercely protect these names through trademark enforcement. Even if your small business operates in a completely unrelated field in a distant geography, these global corporations have the resources and motivation to challenge any perceived infringement.
No matter what creative spin you try to put on these business names to differentiate your brand from theirs, it is likely that giant global brands will aggressively defend their trademark. It simply isn’t worth the hassle or expense of finding out what would happen should you attempt to use such big names.
Beyond potential legal threats, choosing a name too similar to a famous company could distract and disappoint your customers. Customers may feel misled if a name hints at associations that just aren’t accurate. It’s better to come up with a truly unique name for your business that doesn’t piggyback on the identity or goodwill of “big names.”
Wrapping Up
Brainstorming a fantastic business name may take some time. However, a good and memorable name that resonates with your target audience will serve your business well in the long run. Do thorough upfront research to land on an original option that fits your business.
Don’t run the risk of brand dilution and trademark disputes. Before you choose that perfect name, make sure it’s available with our Trademark Research service.
