Welcome to your comprehensive guide to picking a business (or product/service) name that won’t land you in legal hot water.

You’ll get the most out of this free, informative guide if you follow the search steps as you go along.

This guide is designed to help you pick a name from the onset that won’t ever land you in legal hot water. 

But what if you’ve already launched your business, product, or service?

Many creative business owners start their businesses without even realizing it. They have a creative outlet, an opportunity to collaborate, or a personal project. And it ends up turning into a business.

This is why a couple of times a year, I have to tell a client she has to re-brand her business.

• Sometimes because a creative project or hobby turned into a business.
• Sometimes because she didn’t realize the importance of a trademark search.
• Sometimes because she wanted to capitalize on a trend.

If you name your business (or product/service) something too close to someone else’s trademark, you’ll find out sooner or later. (Usually, in the form of a nasty lawyer-drafted cease and desist letter.)

And when it happens, you’ll have to re-brand. You’ll have to start over from scratch. You’ll have to rebuild brand recognition, business goodwill, and pretty much everything.

This is why it’s critical to do the proper research ASAP.

Because even if the URL or social media accounts are available, it doesn’t mean it’s okay to use.

In pre-Internet days, most businesses were local, so this research wasn’t as critical. But these days, the first thing you do is get your business online. And you make sure that Google can find you. You don’t just sell your products locally, but sell your products across the United States (and sometimes outside the United States).

This means another business owner with a similar name can easily find you too. And when they do, they’ll likely either send you an email asking you to change your name (or if they are a bigger company, immediately sic their lawyers on you.)

This guide is here to make sure your creative business doesn’t waste time, resources, or goodwill because you picked a name that is too similar to someone else.

Ready to dive in and pick a name that’s on the legal up and up?

Table of contents

This guide is jam-packed with information! 

To help you navigate it, you can either use the topics below to jump to those sections that you need most or you can read the guide from start to finish if you want to be 100% sure that you are picking a business name that won’t land you in legal hot water. 

Can your business name get a trademark?

First off, not every business, product, or service name is capable of getting a trademark.

So the first step is to decide if your business name qualifies for trademark protection.

Contrary to popular belief, trademarks don’t exist to benefit us, the business owner. Trademarks exist to benefit our customers. Trademark laws are a kind of consumer protection law. They exist so consumers know who is providing them with that product or service.

When you understand this, it makes sense what does and doesn’t qualify for trademark protection.

You can’t get a trademark for:

• generic terms (like quilts, jewelry, or photography)
• phrases that merely describe the product or service you are offering (like modern quilts or un-corporate headshots)

(You also can’t get a trademark for government symbols or insignia, vulgar or disparaging words or phrases, or immoral, deceptive, or scandalous words or symbols.)

The reason you can’t get a trademark for these things is that once you have a trademark, you can stop others from using it. And we can’t make it impossible for your competitors to use common words or phrases to describe their products.

And while it can be done, it’s also harder to get a trademark when it includes:

• your name or the name of a living person
• a geographic location
• a generic or descriptive term even when paired with a non-descriptive term

(And when you do get a trademark for these terms it usually comes with some caveats.)

The biggest challenge for creatives is the limit on personal names. The reason it’s harder to register a trademark in a personal name is that we believe people should have the right to do business under their name.

We usually limit personal name trademarks to those who are household names. And even if you do get this kind of trademark, you can’t stop others with the same name from doing business under their name. (You can only stop them from trying to trade off your name/status to confuse consumers.)

This means the strongest trademarks are:

• made-up words (e.g. Google)
• words usually used to describe something else rather than the business/product/service it’s being used for (e.g. Apple for computers)

If your name doesn’t qualify for a trademark, then you won’t be able to stop your competitors from using a similar name. But they won’t be able to stop you either.

So your first step is determining if your business name qualifies for trademark protection.

Your rights are only limited to those in your lane

The other thing to remember about trademarks is that they only stop those in your lane.

Delta is my go-to example here. Delta is a water faucet company, an airline, and a dental insurance company. We allow Delta to be all three because consumers aren’t going to think that the airline is also selling dental insurance.

But, if I wanted to start a business called Delta Luggage, then Delta Airlines might be able to stop me. Because people might think that I’m associated with Delta Airlines. Especially, if I’m creating cute, overhead luggage. But Delta Faucets and Delta Dental, wouldn’t be able to stop me because consumers wouldn’t be confused. So Delta Airlines could stop my luggage company, but the other two couldn’t.

If I started a bike company called Delta Bikes, none of them would be able to stop me. Because it’s not closely related to the products and services that they’re offering.

Why you should take the time to do a trademark search

As I mentioned in the beginning, a couple of times a year, I have to tell a client that she needs to re-brand her business because it’s too close to someone else’s trademark.

This is why if your product or business name does qualify for a trademark, then you’ll need to do a trademark search.

A trademark search is doing a little research to find out what other businesses are out there with similar names providing similar products or services.

Sadly, a trademark search isn’t a quick and easy process. I usually set aside an entire morning to do them. But they are the best way to assure you that you won’t have to change your business name once you finally start landing those big accounts or getting press mentions.

The reason these searches take so long is that you aren’t going to the USPTO website and typing in your business name and seeing what appears.

Instead, you have to search three different places:

• the USPTO database
• a domain name database
• a web search (e.g. search via Google or DuckDuckGo)

And your search has to be for both exact business names and similar business names.

The reason you have to search three different places is that, unlike copyrights, trademarks don’t have to be registered to be enforced. Trademarks are old-school playground rules. The first person to plant the flag and say, “I’m using this phrase to offer this product or service” gets to stop everyone that comes afterward. And it doesn’t matter if you’ve registered it or not.

Don’t believe me?

Amazon Bookstore was a feminist bookstore in Minneapolis that started in the 1970s. For almost 30 years, they operated a small bookstore and shipped books around the United States. And then in 1995, Amazon.com came along. Amazon Bookstore started to spend more and more time and money trying to convince people that they weren’t Amazon.com.

So in 1999, they sued Amazon.com for trademark infringement. While the lawsuit was settled out of court, we do know that Amazon Bookstore ended up being paid a monetary settlement to give the name to Amazon.com. And they were allowed to continue to use the name for as long as the existing ownership remained the same. (Sadly, like most independent bookstores, the business was sold in 2008, and then closed its doors in 2012.)

Granted, registration makes it a whole lot easier to enforce a trademark. But you can enforce an unregistered trademark, as Jeff Bezos and company learned.

So that’s why it’s important to search all three of these places when we’re trying to find out who else is out there.

The reason that you can’t do an exact name search, is that remember it’s all about consumer confusion. This means that Great Records, Gr8 Records, and Grate Records could all be confusing to consumers because they sound alike.

If my business was Great Records and I looked for an exact match, then Grate Records which had been around for a decade, wouldn’t come up in my search. But they would be able to stop me from using that business name because it could confuse consumers.

4 steps to picking a legit business name

You’ll follow the following four steps to pick a business/product/service name that won’t land you in legal hot water.

Step 1. Verify your name qualifies for trademark protection.

Step 2. Search the USPTO database for your trademark.

Step 3. See if the domain name is available.

Step 4. Do an internet search to see who else is out there.

Please don’t worry if this doesn’t make sense. I’ll be walking you through each of these steps in detail below. And by the end, you’ll have exactly what you need to complete a trademark search so you can pick a name that doesn’t land you in legal hot water. 

My step-by-step process

I conduct a handful of trademark searches each month and this is the exact process I use. This process isn’t easy-breezy, following it to a T takes a lot of work. Even for me, it’s an entire morning project—and I’ve done a lot of them and like doing them.

I’ve also learned that there is an art to doing this kind of search. The learning curve can be steep. Because of that, there is no guarantee that you won’t miss something important. Doing this search and evaluating the results isn’t also a guarantee that the USPTO attorney won’t feel differently about how similar your trademark is to another registered trademark. But doing this search means you won’t be surprised by anything the USPTO attorney says.

If you want a little support in this process, this is a great time to reach out to the attorney on your team or you can hire me to do this search for you.

As I mentioned above, doing a detailed trademark search has three main components. You’ll search:

• USPTO database
• domain name database
• your search engine of choice

To help you follow along with the process, there’s a chart in the Legal Roadmap for Your Creative Business that you can use to document your process (and you’ll also learn the five other bare minimum legal tasks I think every creative business should tackle.

Searching the USPTO database

I start with searching the USPTO database because it identifies if you have a conflict with a registered trademark.

Before you start searching, I suggest that you create a USPTO.gov account. There are several reasons for doing so, but the primary reason is that you’ll gain some added functionality to your searches, that make it easier to view the results.

So take a few minutes to create an account (or if you already have one, log in before you start searching).

Once you have your account, go to the USPTO homepage and expand the “Find it fast” button on the right-hand side of the page. Then click the Trademark Search link (the first link on the right-hand side.)

Once the trademark search page opens, you’ll see this:

Now that you are on the search page, you’ll want to do a few things:

• Switch from “Basic” to “Expert” on the right-hand side of the screen.
• Hit the blue “Wordmark” box and scroll down to the final dropdown “Field tag and search builder” to select it.
• Once it loads, click the carat next to “Search builder” to expand it.

These settings will be the defaults for each of the searches we do.

To walk you through the search process, I’m going to pretend that I create digital PDF sock knitting patterns and my business name is Yarn Squad.

Exact phrase

Your first search is for your exact business name. To do this for my example, I’ll 

• Type CM in the “Type to select field tag” box. 
• Type my business name yarn squad in the “Search text” box. 
• Click “Build” and hit the magnifying glass to conduct the search.

The results will look like this:

Additional tips for those who love the details:

• The CM code means that we are searching just those USPTO database fields associated with the mark name, but not fields like the owner’s name, attorney name, or products or services the mark is associated with. Instead, it’s searching the mark name, the English translation for foreign words, or the correct spelling for commonly misspelled words.
• You always want to type your business name in all lowercase letters in the “Search text” box and do not use parentheses.

Ideally, we won’t get any results here. Because if we do, then this means another business is using your exact name. If you do, then you’ll want to examine each record individually (more on how to do that below).

Partial match

Brainstorming similar matches is where the art of a trademark search comes into play. The reason we need to search for similar marks is that the legal standard isn’t only an exact match. The legal standard is that two trademarks cannot create consumer confusion. 

Phrase

The first part of this is searching the words individually. For my example, I’d do this by:

• Typing CM in the “Type to select field tag” box and yarn in the “Search text” box and clicking “Build”
• Clicking the “AND” blue button and changing it to “OR”
• Typing CM in the “Type to select field tag” box and squad in the “Search text” box and clicking “Build”
• Hitting the magnifying glass to conduct the search.

Now usually, this search gives you far too many results to be useful. Just like it did here:

And that’s because this kind of search pulls up all records that have either the word YARN or the word SQUAD. Occasionally this gives you less than 100 results, which is why you should attempt it.

If you get less than 100 results, then review each result using the framework below. If you get more than 100 results, then use the tricks below to narrow your results. You’ll then review each of those results individually.

Wildcard search

Partial matches aren’t the only way that marks can be similar. Another way to find similar marks is by adding wildcards to your search builder. These wildcards can be added in front, behind, or on both sides.

• Using a “?” is a wildcard for one letter. This means squad? would return squads but not squaded.
• Using a “*” is a wildcard for multiple letters. This means yarn* would return both yarns and yarned.

Plurals

If the word in your name doesn’t have a standard plural (e.g. mouse becomes mice), then you’ll want to make sure you search for any plural variations.

Obvious misspellings and sound-a-likes

Finally, you’ll want to search for any obvious misspellings or sound-a-likes.

• SOLE sounds like SOUL
• VEIN sounds like VANE
• KNIT sounds like NIT
• ENTREPRENEUR is commonly misspelled ENTREPERNEUR 

Some foreign words also have accepted alternate spellings. If that’s the case, then you’ll need to search those as well. For example, Koran can be translated as Koran, Quran, or Qur’an.

Or if there is a name within your business/product name, are there any variants? For example, is he a Shawn, Sean, or Shaun? (Of course, as we discussed above if you have a personal name in your trademark, that is a whole other battle.)

There are also all kinds of shorthand translations for different words:

• Optic becomes Optix
• Easy becomes EZ
• You becomes U
• Christmas becomes X-mas
• Great becomes GR8

Brainstorming a complete list of all the random things that might lead to confusion, is where the art comes in. The more searches you perform, the more crazy trademarks you see. And it helps your brainstorming process.

Once again, for each similar match search, you’ll search, narrow your results, and then review them individually.

How to narrow your results

For most of our searches, you’ll be getting pages of results. (And each page has about 50 results on it.) 

Looking at each individual result not only would take a lot of time but would waste time because many of them won’t be for products or services that would be confused with your products and services. (Like with our Delta example, bikes won’t be confused with dental insurance.)

So for each search, you’ll narrow down the results to just the relevant ones. I try to get my list to 100 or less (two pages of results).

My favorite way to narrow the results is by using the Coordinated Class (CC) code in the “Type to select field tag” box. Because this narrows our results to the exact products and services that we offer plus those related products and services that might lead to confusion.

For my Yarn Squad business, I’m selling PDF patterns, which fall within 009.

But a PDF knitting pattern company might also sell:

• printed patterns (016)
• yarn (023)
• have a retail location (044)

For example, when I did my initial individual word search, I got 2880 results.

But I can narrow that by:

• Typing CC in the “Type to select field tag” box
• Starting to type “009” in the “Type to select class” box and selecting “009 Electrical and scientific apparatus” and clicking “Build”
• Hitting the magnifying glass to conduct the search.

Now, I’ve narrowed my results down to 1471.

Picking the right coordinated class to narrow your results by goes back to the art of doing a trademark search. 

For example, here when I select 009 as my Coordinated Class I get 1471 results. But if I select 023, which is the class that yarn is in, I only get 460. 

The reason is that 009 contains not only downloadable media like PDFs but also all scientific equipment. And so there are lots of coordinated classes that probably won’t create consumer confusion with our pattern company.

It’s more likely that a yarn company is putting out knitting patterns than a scientific equipment company, so if I’m going to look closely at results, looking at those target 460 is a better use of my time.

Another way to narrow your results is by removing any result associated with a dead mark.

You do this by narrowing your results by adding:

• Typing “Live dead indicator” in the “Type to select field tag” box
• Leaving the blue box as “Live” and clicking “Build”
• Hitting the magnifying glass to conduct the search.

This takes my 460 results down to 206.

However, a word of warning with this search is that just because a trademark is no longer active with the USPTO, doesn’t mean that it’s not still being used by a company. As we discussed above with our Amazon ladies, a registered trademark isn’t a requirement for trademark rights. So while it’s a way to narrow your results to determine if there is a registered trademark or pending application that would prevent you from registering your trademark, isn’t a way to determine if there is another business out there that would object to you using this trademark. So use this filter with caution.

How to review your results

At this point, ideally, you have around 100 results to review for each search. For our Yarn Squad company, our results look like this:

The reason that you want to be signed in to your MyUSPTO account at this point is rather than leaving the search system to view your results, if you are signed in, you can see everything in one system, on one page.

So you’ll click the first record on the list and get something that looks like this:

This page will give you all the information on the trademark:

• what it is
• if there’s a logo associated with it
• who owns it
• when they started using it
• what products or services they are using it on
• what International Class(es) of Goods and Services is it registered in
• if they are actively using the mark with the USPTO (LIVE = YES, DEAD = NO)
• when the trademark was registered
• the attorney associated with their application and/or registration

The legal test: Likelihood of Confusion

Using this information, you’ll put yourself in the shoes of a busy consumer. And then answer the question, “If I wasn’t paying close attention, would I assume these were the same business?”

If your answer is “yes”, then you need to consider changing your name. If the answer is “no”, then you can move on to searching the domain name database.

This is a simplified version of the legal test, which is called the likelihood of confusion. When consumers are likely confused about the source of a product or service, then the older trademark owner can stop the newcomer. But this question is a good starting point when making this call.

Searching a domain name database

There are lots of domain name databases out there. So you’ll pick one of them. And like you did with the USPTO you are going to search not only for an exact match but also for the obvious variations. So from your USPTO brainstorming list search for anything you brainstormed for:

• obvious variations
• plurals
• obvious misspellings and sound-a-likes

If you find that any of the domains aren’t available, then hop over to the website. If it is a parked page, then you might be able to buy it. However, if there is an active website, evaluate it using the likelihood of confusion test explained above.

In addition to the likelihood of confusion test, consider if you are okay without this URL. Is the .com or .co taken? Are you okay with what’s still available? If it passes all of these questions, you get to move on to your final step.

Searching the web

Remember, a trademark doesn’t need to be registered to be enforceable. So in your search engine of choice, enter your proposed name and anything you brainstormed for:

• obvious variations
• plurals
• obvious misspellings, and sound-a-likes

Examine the first few pages once again by thinking about possible consumer confusion using the likelihood of confusion test. If what you found in this step might confuse consumers, then you might want to change your name. 

Do I really need to follow this entire process?

Let me ask you a counter-question. Do you want to finally get your big break only to discover that you have to re-brand your business?

Because I’ve seen that happen more than once.

I know this process is a pain. I know this process is overwhelming. But this process will ensure that you don’t build a business on a name that you can’t keep using.

It will decrease your chances of opening your email to a scary lawyer letter telling you that you have to start over and rebuild brand recognition from scratch.

If you are serious about building and growing your business, you need to follow this process to a T.

If your brain doesn’t work like that, then you should pass this task onto an expert. (You can learn more about how to hire me to do this search here.)