What’s in a name?
Choosing a good name for your new venture can be very challenging and is also very important. Although the saying goes that “a rose by any name smells just as sweet”, and there is something in the fact that is your product / service is so compelling it is likely to be a success whatever it is called, I have found very people in marketing and no one in the legal profession that thinks the name chosen is not a vitally important consideration and so it is worth spending a bit of time at the beginning making sure you get the name right. The name is central to your brands personality, it acts as a hook on which the entire persona of the business hangs.
The most important consideration is whether it is legal to use the name. This is not determined by whether the company name is free, there is a catchy domain name unregistered or you have registered your business in some third-party private directory. No, the legality of the use of the name depends on whether its use would infringe an existing trade mark or whether it could be considered to be passing off by being too similar and taking goodwill from an existing unregistered mark. Trade mark law is in essence consumer protection: it is there to stop a consumer from mistakingly buying a product / service from someone they didn’t intend to because they were confused by marking on the product / service which were similar / identical to the markings they were familiar with. To prevent this happening, the trade mark system has been set up which allows owners of existing marks to prevent the registration of new marks which are the same or confusingly similar to their marks. The existing owners can prevent registration for any goods / services that are the same or similar to the ones they have registered or, if the mark has a reputation, for any goods and services. The first thing you should do once you have thought of a name therefore is to search the trade mark databases to see if there is any chance that its use may infringe an existing trade mark. The most common international trade mark database is called TMView (and there are regional versions also e.g. see the ASEAN TMView).
The next thing you should consider is whether you may be able to obtain your own registered trade mark in the future so that you can build yourself a strong brand and give yourself some protection from copycats and those that wish to freeride on the hard work you have done by selling their product / service with a name that is similar to yours. To obtain your own trade mark, not only must it not be opposed by an existing owner of a mark but it also cannot be descriptive of the product / service you are selling (as anyone should be able to use such a name). lack distinctiveness (e.g. by being related to the place you are operating your business from), be offensive or be similar to a specially protected symbol (for example a national flag or the Olympic rings). If your mark does lack distinctiveness, all is not lost as it can “acquire distinctiveness” if it is used so much use that it becomes associated with product / service by a large proportion of the relevant public. It is probably best though to choose a name that is inherently distinctive and unique if you can. This can either be:
– a made-up name. For example ASDA, Tesco and Syngenta had no meaning before being used by the famous companies that are now associated with them.
– a normal word but used in a different context. No one would have associated “Orange” with selling mobile phone services, “Apple” with computer devices, or “Shell” with selling petrol
Once you have what you think is a good name from a trade mark perspective there are of course a number of other things to consider before you settle on the new shiny name for your venture. These include:
– Domain names. Are your preferred .com and or other domain names available. These can easily be checked and, if they are free, registered from a large number of service providers like 1&1
– Company name. In the UK, you are not allowed to register a company name that is the same as one that is already registered. You are also not allowed to register one if an existing company thinks there is a chance that interested parties will confuse their name with yours and write to the wrong entity. You should therefore check the company name database at www.companieshouse.gov (or the national equivalent)
– Social Media handles. If you think a strong presence on Twitter, Facebook, Instagram or another social network is going to be important for your business, it is important to check that the username is available for these networks
– Translations. If you think you may trade overseas or have foreign customers, which is quite likely, then it is also important to check what your new name means in other languages. It can be very unfortunate if after using your name for a number of years you start to export only to discover your name has unwelcome connotations in the country you are entering .
If you liked this article please make sure you register for a FREE account with us by clicking here – we’ll keep you updated with other articles like this.
© Copyright Ian Goodyer, 2018. All rights reserved. Used with permission by Ideas Portal