Finding out another business is using a similar name to yours can bring up emotions for a small business owner. To remedy that situation, proactively protect your business by registering for a trademark.
Trademark Similarities and Differences
How similar can two business names be? If they are similar visually, phonetically, or conceptually, the names are overall similar and cannot be registered.
To avoid a name too similar to another, search existing names in your industry – online directories, trademark databases and social media. Perform a business entity name search, typically on your State’s Secretary of State website. Also, search domain names, federal trademarks, and the web.
State Requirements and Industry Coexistence
Most states require an LLC name indicate it is an LLC, using "LLC" in the name. Some words, like "Board," cannot be used. Identical business names can coexist in different areas of business.
A business name embodies a brand and its values. Trademarks legally protect businesses in specific industries. So companies can have the "Apple" name but in different industries. They ensure no infringement in each other’s categories.
Name Change Policies and Federal Trademark Protection
Existing companies can apply within 12 months to change an entity’s name if too similar. Note a trade name can differ from a registered company name. No one database governs business names across states. Trademarked names are federally protected, so cannot use an existing trademarked name anywhere.
To be approved, a Canadian business name must be distinct, not conflict with others or be similar to another local business in goods/services. Though approved, another corporation could still contest the name. To protect a name, incorporate provincially and federally.
Legal Considerations for Company Names
If the two similarly named businesses are in different states and/or operate in different industries, then there’s likely to be no or minimal customer confusion. In this case, it’s unlikely that you would be legally get the other business to change its name.
The claim to a business name is heavily influenced by customer confusion, and whether having two similar or identical names will frustrate customers.
The name of a company is not necessarily a trademark, so you are conflating two different concepts: A company name is the legal identity of the company, while a brand is an advertising construct which identifies certain goods or services.
Registering and Protecting Your Business Name
To find and register a business name, first make sure it is unique and available by searching:
- Business entity names
- Domain names
- Federal trademarks
- The web
When your business operates nationwide or in multiple states, and the other business operates in just one, you may have more standing to force the other business to change its name as it could cause confusion for your customers.
If the proposed company name is going to be part of the same group as the existing company with the ‘same as’ name, the ‘same as’ rule may be waived. The existing company can give consent to the use of the ‘same as’ name, if the companies will be part of the same group.