How to Check if Your Business Name is Taken: The Trademark Clearance Search

Most people want a unique name for their new business. It’s good for marketing. Not only that, when you file an assumed name certificate, set up your LLC, or form a corporation, the state agency will check if another business is already using the same name. So, you need to know how to check if your business name is taken. Most of the time, this is done with a trademark clearance search.

This article is Part 2 of our series on How to Find the Right Name for Your New Business. In Part 1, we went over some techniques on how to pick a great business name. Now, we’re going to show you how to make sure the name you like best hasn’t been taken by someone else. (And, if it has, how to decide if you might still be able to use it. Or if it’s better to move on your second choice.)

So here’s what you do.

If You’re Filing an Assumed Name Certificate, an LLC, or a Corporation, Check with the State Agency

You have to make two types of name checks when determining business name availability. The first is with the state filing agency for your assumed name certificate, LLC, or corporation. They will check for the exact name.

Sometimes, you can get around this exact name requirement by adding a comma before the LLC or Inc. Other times, using, for example, Corp. or Ltd. Instead of Inc. will get around the exact name requirement too.

Depending on which state you’re filing your paperwork, sometimes, you have to call them for the check. Other times, you can check online yourself. To get to the correct website, just search the internet for “[your state] name availability search” or similar.

But, just because the state filing agency says the name is available doesn’t mean you will be able to use the name/trademark without legal problems in the future.

To fully answer the question, “How to check if your business name is taken,” you should do a trademark clearance search too.

Before You Start a Trademark Clearance Search, Understand the Scope of Your Business

Trademark clearance searches can get complicated. You can easily get carried away wasting your time going down rabbit holes looking at too many marks. So, even before you start a trademark search, remind yourself how big you intend to take your business.

If you want to open a coffee shop and always stay local, then you won’t need to do an extensive trademark search. Make sure your name is different from the big national and regional chains, of course. But focus your search on other coffee shop names in your city or state. Even if you open a second or third store, as long as you stay local, you’re less likely to run into trouble.

But, if you intend to start a franchise all over the country, then, yes, you’ll need a different treatment. Basically, any time you intend to sell outside of a local market and go regional, national, or even international, you’ll need to pay a lot more attention to the name you pick.

Before you go overboard, however, always remember that your company name is not set in stone. You can always change it in the future. Or you can just market your goods or services under a new trademark. Having to make this change can be painful because it will cost you time and money, but it can be done.

So, proceed carefully, but don’t let any possible problems paralyze you.

There are Several Levels of Trademark Clearance Searches

When a big company is thinking about changing its corporate name or using a new trademark, they pay a lawyer to do something called a comprehensive clearance search. Often, this search covers not only domestic trademarks but also international marks. It sometimes covers logos too.

Most small businesses only need a simple knockout search, however. The search is less thorough but costs less. It gives you a pretty good idea whether your business name is already taken. Often, this is enough.

Under Some Circumstances, You Might Want to Get a Comprehensive Trademark Search

If you plan to start out pretty big and, for example, heavily advertise your company on the internet or even do TV commercials, you might want to hire a trademark lawyer to do a comprehensive trademark search.

The process starts with hiring a professional searcher to search registered trademarks, trademark applications, and internet usage. Sometimes this is for US only, but other times it’s for trademarks all over the world. It might cover logos too.

Your trademark lawyer can give you a recommendation on how extensive the search should be, based on your intended use of the mark. The trademark searcher generates a report that can be hundreds of pages thick.

Then, a trademark lawyer will analyze the search report. They will tell you whether you’re likely to be able to register your trademark. They also often point out existing trademarks whose owners might complain about your use of your proposed mark.

The lawyer plus the report typically costs a few thousand dollars. Then you’ll pay a few thousand more to file a trademark application.

For a small startup business, a comprehensive trademark search is probably an overkill. But, if your business name or trademark will be at the center of a six or seven figure advertising campaign, the fee is worth it.

You Can Do Your Own Simple Knockout Search for Free

Instead of hiring a lawyer, you can do your own simple trademark clearance search. You’ll probably miss some conflicting marks. But at least you’ll have a general idea on whether your business is already taken.

Here’s how to check if your business name is taken, the DIY way.

Free Online Trademark Search Tools

There are several tools you can use to do your quick trademark search:

• The search engine of your web browser
• The trademark database of the US Patent and Trademark Office (or your country’s trademark office if you’re not in the US)
• The online marketplace where you plan to sell your goods/services (e.g. Amazon, Walmart, Etsy, the Apple and Android app stores)(but this is more suitable for product names than company names)

How to Build the Trademark Search Terms

To begin your trademark clearance search, first make a list of words that sound, look, or mean close to the proposed name of your business. Don’t forget to vary the spelling a little, so you capture similar-but-not-exact matches. If the search tool you use doesn’t allow wildcards for word endings, be sure to check endings like -ed, -s, -es, -ing, and similar.

For example, light and lite are treated as the same word if they’re both used to mean having lower calories. People seem to like to spell small as smol these days too.

Run this list of words through the search tools and take down the results. Pay attention to what kind of products or services are used with the marks you find.

How to Analyze Your Trademark Clearance Search Results

Below are a series of questions to ask yourself once you get your list of results. When you answer these questions, be honest with yourself.

It’s human nature to rationalize or minimize problems that are in the way of getting what we really want. Don’t do that. Ask someone you trust to be a sounding board. See how they answer these questions too.

Are the Marks Similar in Sight, Sound, and Meaning?

Ask yourself if the two marks:

• Look alike in spelling
• Sound alike when pronounced or possibly mispronounced
• Mean close to the same thing

If you answer no for all three, then you probably won’t have problems using the mark for the name of your company.

If you answer yes to any of the above, then ask:

Are There Many Other Companies Using the Same or Similar Mark?

If there are a lot of other companies, then you might be able to slide by from a legal standpoint.

From a marketing standpoint, you probably should avoid the mark. It’ll be hard for a potential customer to tell you apart from your competitors if you’re all using similar marks.

Are the Goods/Services of the Other Company Sold Through the Same Channel of Trade as Yours?

Similar marks sold through the same channel (e.g. everyone is on Amazon or the Apple App Store) typically means you might have legal issues using the mark.

From a marketing standpoint, it’s probably better to pick another mark anyway so you can stand out among your competitors.

Are the Nature of Your Goods/Services Different?

If you and another company with a similar name are selling the same thing, there will probably be a legal conflict between the companies. This would be true even if you sell just the parts door-to-door and the other company sells the fully assembled item online.

It’s better to pick another name and stay out of trouble from the start.

What Happens If You Think the Mark is OK to Use?

If you find a name that passes your simple trademark clearance search, then it’s probably OK to go ahead and use that name. Be aware, though, that trademark law is complicated. There is still a chance that you missed an issue or two.

In the future, it is still possible that someone claiming to have superior rights to the mark sends you a cease and desist letter (or sues you). At that time, you could change your business’s name (or operate under an assumed name). You could also hire a trademark lawyer to tell you your rights and maybe fight the other company. Some trademark owners overstep in enforcing their mark, so you should know your legal rights too.

In any event, the worst-case scenario is that you’d have to change your business’s name very quickly. This might mean new signage and marketing materials. You might also have to turn over your domain name and social media handles. Sometimes, aggressive trademark owners might force you to pay their attorney’s fees too.

This could be relatively easy for a sole proprietorship that’s just starting out. But it can get expensive if you operate a chain of stores all using the same name.

Beware of Cheap Trademark Searches Advertised on the Internet

If you do an internet search for how to check if your business name is taken, you’ll see advertisements for trademark search services. Some of them advertise a search for just a couple of hundred dollars. Read the fine print carefully, because you’ll likely be getting just the report without a lawyer’s analysis.

The report is typically pretty thick and probably contains hundreds of marks. It’ll look pretty and official, but it probably won’t give a go/no go conclusion. So, without a trademark lawyer’s analysis, the report is useless for a layperson. Be very careful when you see services offering low-cost reports. Don’t waste your money buying something you can’t use.

Trademark law is complicated and full of exceptions to general rules. An experienced trademark lawyer can sometimes help you get a trademark registration where a less experienced lawyer cannot. Conversely, an inexperienced trademark lawyer can sometimes tell you a mark is OK to use when actually it’s not.

So, if you think you need a professionally done trademark search, get the one that comes with a lawyer’s report. Here are our tips on how to find a good intellectual property lawyer.

After You Find a Name for Your Business, Should You Trademark that Name?

Now that you’ve learned how to check if your business name is taken, what are your next steps?

Eventually, you probably should register your company (or product/service) name as a trademark. But you don’t have to do it right away. This is especially true if you’ve already grabbed your domain name and social media handles so that no one else can get the same name. (Which we will discuss in Part 3 of our series.)

If you’re a well-funded startup and you want to make a country-wide marketing splash for your grand opening, then you should file that trademark application ASAP. Hire a trademark lawyer and ask that they file something called an Intent to Use Trademark Application. This way, you reserve the name for yourself.

But most small businesses will grow organically. If that’s your case, don’t feel pressured to file that trademark application right away.

In the US, trademark rights come with use. So, if you put your money and energy into opening your business and start selling goods or services, then you’ll have at least some rights to your company name/trademark even without a formal trademark registration.

Interested in starting and running a small business? Here’s the beginning of our step-by-step guide: What to do right after getting that great business idea.

DISCLAIMER: This article does not constitute legal advice. Instead, it contains general information. The information gives you the background you’ll need to hit the ground running when you do go get advice from a lawyer. Only lawyers properly licensed in your state/country are qualified to give you legal advice.