“What’s in a name? That which we call a rose by any other name would smell as sweet”. (William Shakespeare, Romeo and Juliet, Act III, Scene II)
True enough, if you are Juliet speaking to Romeo, but for business owners, when it comes to names, precision and consistency are important for building a brand and avoiding confusion.
Naming a business
For business owners, the naming process most often begins with the selection of a name for the entity that will own and conduct the business. All states in the US require that the names of corporations and limited liability companies be “unique”. That means that no two entities may have an identical name. They may, however, share one or more elements of a name. For example, Purple Electric, Inc. and Purple Plumbing, Inc. may coexist in New Jersey and any other states, as may Purple Plumbing, Inc. and Purple Plumbing, LLC. All states maintain databases of corporate names, many of which are searchable online, and the first step for any business owner should be a database search to determine name availability.
Business Name Registration
The name of an entity and the name under which it intends to conduct business need not be the same, and, in many cases they are not the same. Where the name of an entity differs significantly from the name under which it does business, a business owner in New Jersey and many other states will be required to register an “alternate name“. Many states refer to an alternate name as a “d/b/a” (“doing business as” name). An alternate name need not be unique, and will not provide an exclusive right to its use, but it will be linked to the corporate entity and enable a business to use an alternate name for financial, advertising and other purposes. Registration of an alternate name must be renewed periodically. In New Jersey, the registration is filed with the state, and must be renewed every five years. In many other states, the registration is filed in the county where the entity is doing business.
Alternate Name as Brand or Trademark
Very often, the alternate name of a business will function as a trademark or service mark, the purpose of which is to distinguish the goods or services provided by a business from those of every other business. Adopting an alternate name or d/b/a as a brand or trademark provides the consistency that will help your customers and prospective customers to identify your business in a crowded marketplace, and enable the repetition that is essential to fixing your brand in the minds of your customers. It helps your customers remember you if they see the same name in your advertising and on contracts, invoices, business cards, vehicles, signage and checks.
In order to qualify for registration with the United States patent and Trademark Office (USPTO), a brand or trademark must be:
- unique for the class of goods or services to which it is applied;
- may not be descriptive; and
- must be in use in interstate commerce.
Federal registration confers important procedural advantages; but owners of marks that may not qualify for federal registration have common law rights that can protect a mark from infringement.