Trademark Issues In Selecting Names

State and Federal trademark issues are an often overlooked consideration when selecting a corporate name.

The primary trademark issue, is whether the name that you shoose may infringe upon the name of another person. Even if your corporate name is available in your state that does not necessarily mean that someone else does not have trademark rights associated with that name.

This is because of one key concept of Trademark Law; Trademark rights attach upon USE of a name and not uon filing or registration as a trademark or corporate name. Therefore, someone may have right to the name under trademakr laws even if they do not have the corporate name in your state.

The other thing to keep in mind is that there are also federal trademark laws. Under federal trademark law, someone who is incorporated or who has their principal business headquarters in another state may have trademark rights that you might infringe upon with the use of a conflicting name.

This is why to be absolutely safe, a trademark search of your name is adviseable. This does not have to be performed necessarily upon formation. You can later file an amendment to your Articles to change the corporate name if you later discover it infringes on someone elses rights. But a trademark search is adviseable before you commence doing significant business or put substantial marketing or development costs behind your name.

Because trademarks rights arise upon USE and not REGISTRATION, a search of the government office records (state records and federal trademark office) are not sufficient to disclose whether the name you have chosen conflicts upon the rights of a trademark owner. Registration records only show you who may have registered their trademark rights. There are likely many more companies with trademark rights than have gone through the process of registering those rights.

Therefore, to assure you that you will not be sued by a trademark owner, a comprehensive common law trademark search is highly adviseable.