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5 Business Name Mistakes You Should Avoid!

You should think about the branding aspects of your Business Name before you

start the business! There are a few things you should always do first. Missing any

of these crucial steps before starting your business or organizing it with the

Registrar of Companies (or similar agency) is a mistake that can cost you or your

business immensely down the road! I am talking specifically about Branding

Mistakes and the consequences that can potentially arise for your early missteps.

Below are some common mistakes you or your partners should avoid before

settling on a name for your new business.

1: Choosing a Business Name that does not also function as a

Trademark or Service Mark!

Keep separate your Product and Service Branding aside, you will generally want

to Brand your Business Name. You or your partners should be thinking about a

name that is eligible for All India protection. That means you should avoid using

your last name, which generally is ineligi le for prote tio u less “e o dar Mea i g a e esta lished. You should also avoid using Geographic

Terms. Trade Names can be ineligible for protection based on the use of

geographical terms. (You can use certain geographic terms to describe your mark,

but it depends upon the nature of your business and how you use the term to

describe the Goods or Service.) Finally, you should choose a name that is Arbitrary

or Unique like Google, Microsoft, Adidas or Exxon, not a name that is merely

Descriptive or that is Generic. The bottom line is that Arbitrary or Fanciful Names

and names which are Suggestive are automatically eligible for protection.

Descriptive Names must acquire secondary meaning in order to receive

protection and Generic Names are never eligible for protection. So, choose wisely.

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2: Assuming that your Business Name is protected when you Register

it with the Registrar of Company.

In India, Registrar of Companies maintains a register of all orporatio s, LLC’s that have been organized / formed (and are in good standing). If your name or the

primary keywords are already taken, you will have to go back to the drawing

board. You can search registered business entity filings online. Your best bet is to

simply contact your attorney and confirm name availability. Warning: If the name

you want is available, the common mistakes many business owners make is

believing that by filing organizational documents with the Registrar of Companies,

this provides protection of the Business Name. The Registrar of Companies will

only conduct a name check to prevent the filing of multiple entities with the same

name in full.

This is meaningless from an Intellectual Property Rights Law standpoint.

In addition, even within our country there may be different types of entities as

well as Sole Proprietorships or General Partnerships using the same name. These

names will not show up on a corporate name check by the Registrar of

Companies. The bottom line is that business organization does not secure your

right to the business name nor does it protect you from claims of infringement by

a prior user of the name!

3: Failing to conduct a Google and other major Search Engine search.

I have had plenty of clients who have not even done a search on Google or

another major search engine to see if the name they have chosen is being used in

commerce. Trademark Infringement is a serious matter. While you may not think

your local business will ever run into a problem because your customers are local,

you have a physical presence only perhaps or whatever your reasoning maybe,

you would be wise to consider future growth. If you operate online or a business

that operates in multiple states, you need to be concerned about infringement

o , ot later. This post is ’t eant to tackle the specifics of Trademark

Infringement. But, you should understand that if other consumers would be

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potentially confused as to the source of a Goods or Service you Sell / Provide with

another business, which could cause problems. You do ’t a t to e o the e d of a Cease and Desist Letter asking you to essentially stop using your business

name months or years after working so hard to establish its branding! All of that

can be avoided by making the right moves now.

4: Failing to search the TMR (CGPDTM) database & various Business

Directory databases.

If you pass the first 2 hurdles after you have chosen a name, you should

absolutely determine if an identical or similar name is registered (or on register

for registration) with the Indian Trademark Office (TMR). The purpose of the

search is to help deter i e hether a Likelihood of Confusion e ists ith the

name you have chosen and another Trademark or Service Mark. This means you

are trying to determine whether the name has already been registered or applied

for at the TMR that is the same or similar to your mark and used on related

products or for related services. A Dunn & Bradstreet (D&B) database search,

related business directory searches, Company / LLC database searches, etc.

should all be evaluated to make sure you unearth any identical or similarly

confusing names that may have slipped through the cracks during the first few

steps.

5: Grab that domain!

Maybe you’re thinking of different domain name instead of the name of your

business. Without getting into that debate, if you intend on using the name of

your business as your domain name, you better make sure it’s available for use

a d the go gra it! It’s a ad feeli g getti g our e usi ess off the grou d, ut the a fe o ths later ou dis o er the orrespo di g . o do ai is ’t

a aila le. Do ’t ake this riti al istake a d se ure our domain first. While you

are at it, you should grab any related domains such as .net, perhaps an alternate

ersio ith the i the egi i g of the a e a d so e o o isspelli gs

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of the domain. But, there is no need to go overboard. Keep in mind that, using

domain names that infringe upon the established Trademarks or Service Marks of

others will land your business in hot water!

E e if ou do ’t ake these 5 o o istakes, ou should still o sider getting a legal opinion on the name you have chosen. You’re ot a e pert. “o why play Trademark Attorney and put your business potentially at risk? Granted,

a Search Engine and TMR Search is a great start. But, it may not unearth potential

problems. The safe play is to always hire a Trademark Attorney.

If ou a ot afford to hire a attor e or still do ’t thi k it is e essar , ou should absolutely avoid these 5 mistakes before organizing your startup!

About the Author:

Manoj Kumar Srivastwa

Mr. Manoj Kumar Srivastwa operates his private law practice, TRADEMARKing

powered by TRADESAFE IP (A Full Service Intellectual Property Rights Law Firm)

which focuses on startup and small business law, e-commerce and Internet

marketing law and commercial and real estate transactions. Mr. Manoj Kumar

Srivastwa continues to represent startup, small and medium sized businesses with

most corporate and business law matters. He can be contacted on

+919693498580 / +916122521468 Email: mytradesafe@gmail.com or visit:

www.tradesafe.in