Naming your business: four steps to legally protect your business name

Opening a business is a big undertaking.  In addition to all the decisions about start up costs, products and services, marketing and other critical elements, you also need to think about the legal aspects.  One fundamental decision that may well bridge across all those factors is naming your business.
Some businesses will try to find something descriptive (think Energizer batteries or Danskin leotards), some will base it on the owners’/founders’ names (Macy’s or Johns, Flaherty & Collins), still others will go for something novel such as a character in literature (Starbucks), a foreign phrase (Etsy) or something symbolic (Amazon).
Whatever your inspiration, one thing is certain: you need something unique, where you won’t intrude on anyone else’s intellectual property rights and where others won’t intrude on yours.  To be sure you’re playing it safe in Wisconsin, follow these four steps.

  1. Search state corporate records.  Visit the corporate records section of the Department of Financial Institutions’ website and type in the name you want to use.  The search will show you if any other corporation is using that name.
  2. Search the web.  Search for the name online using a reliable search engine.  Not only will that tell you if someone else is using the name you want, it will also let you know if the domain name is taken. You may also want to search Trademarkia, an online database that allows you to search millions of marks dating back as long ago as 1870. 
  3. Check for trade names.  Visit the United States Patent and Trademark Office website and use the TESS (Trademark Electronic Search System) tool.  That will allow you to see if anyone else in the U.S. has that name.
  4. Register your name.  While corporations in Wisconsin are not required to register their names with the state, doing so is one more way to let people know your business name is taken.  For sole proprietors or those conducting business under a fictitious name (or dba, “doing business as”) that are not incorporating, this step is essential.  To register your business name, visit the Wisconsin Department of Financial Institutions website and search for “registration of marks.”  That will lead you to an “Application for Registration of Marks” to complete.  The fee is just $15.

While registering your mark will give you trademark protection in Wisconsin, it will not cover your business outside the state.  If you have big plans for your brand, you may want to register it with the U.S. Department of Trademarks and Patents.  Be aware that the application process is tedious, costs around $400 and takes three to six months to complete.  Going to this extra effort, however, will allow you to bring a federal court claim against any entity that violates or infringes on your trademark.
Generally, the right to a name belongs to the first person to create it and use it in commerce.  If you can prove both, you do not need the trademark to be registered in order to enforce your rights to the trademark.

For questions about naming a business in Wisconsin, contact Brandon Prinsen at 608-784-5678.


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