In Romeo & Juliet, Shakespeare said,
“What’s in a name? that which we call a rose
By any other name would smell as sweet”
It may be true that calling a rose anything else would not change the scent of the rose. You could also say that if you changed the name of “Budweiser” to something like “Smith’s” it would still taste like the beer we currently know as “Budweiser.” A beer by any other name… right?
Shakespeare’s quote sounds great when it’s in the context of his famous play, but in business it could be a disaster. Let’s take a look at “Smith’s Beer” as an example.
John Smith in St. Louis developed a new recipe for beer and decided to call “Smith’s Beer.” Okay, it’s his name and his recipe John decides he wants to go into business selling his beer and registers a corporation with the State of Missouri called “Smith’s Beer, Inc.” There’s no company in Missouri using that or a similar name so all is good.
Now, let’s suppose that 10 years earlier there was a guy in Vermont who made root beer. His name was James Smith. He formed a corporation in Vermont under the name of “Smith’s Root Beer, Inc.” John Smith knew nothing about James or his root beer.
If neither company sought to grow beyond its own state, they would go on not knowing about each other. Their state laws would have prevented anyone else from forming a corporation using their names or one that was too similar within their states. Life would be easy for both John & James if that were the case and there was no Internet.
Now, let’s say John’s beer becomes popular in surrounding states such as Kansas, Indiana, Illinois and Arkansas. Now John decides he wants to trademark the company name, the beer name, the logo and so on. After all, he’s getting popular. He files the necessary paperwork with the US Patent and Trademark office and his trademarks are granted. (Yes, Mr. Trademark Attorney I know I’m oversimplifying.)
Less than a year later, Smith’s Root Beer starts selling its product online on its own website, on Amazon or on some other outlet. Coincidentally its logo is similar in appearance to that of Smith’s Beer, which has been trademarked.
Smith’s Beer, Inc. gets wind of this and their attorney sends Smith’s Root Beer a letter notifying them of their trademark infringement and demands that they cease and desist.
What ensues is a legal nightmare for both companies.
How do you keep something like this from happening to you?
You can of course hire a trademark attorney to make sure you’ve got properly protected trademarks from the get-go. That can be somewhat expensive. Can you do it yourself? Yes – to some degree. When you’re forming your business or naming your product or service you should research a few things or have someone do it for you.
- At the county level you need to see if anyone has registered a fictitious business name similar to the one you want to use.
- At the state level you need to find out if there is a corporation or limited liability company registered in your state using the name you want to use.
- You should determine whether or not the domain name is available for the name you want to use. If it’s not, someone probably has it and is using that name for their business.
- Do an Internet search on the business name using your favorite search engine. (This isn’t the same as checking domain availability.)
- Finally, search the US Patent and Trademark Office (USPTO) for any trademarks similar to the one you want to use.
If you do that all that, and the name is available at all levels, you’re probably good to go. This won’t protect you from other people later using your name, etc. but it can help to ensure you’re not using someone else’s name or trademarks. Later you can take the necessary steps to protect your trademarks when you have the funds to do so.
You might think that these things wouldn’t be necessary if you’re opening a clothing boutique or similarly hyper-local business. Think again. Just because you have no plans to become a national chain, doesn’t mean someone in Alabama who already has a similar name isn’t planning to eventually do business in your area… you don’t want to receive a nasty letter from their attorney some time down the road.
If you weren’t very thorough about your name selection when you started out, you can do the above steps now. You can then decide to rebrand or not depending on your goals and what you find in the above searches.
What’s in a name? Quit a lot as it turns out and it really doesn’t matter what a rose smells like.