Legal Requirements
Even though the infographic suggests it, I have never asked a client to search the USPTO. I like to do that myself because I can judge whether the chosen name will infringe on someone’s trademark or not. If it will potentially infringe, I can jot down the owner’s information and if the entrepreneur still wants the name after being counseled that there could be some confusion, we can ask permission to use it. I find it is better to be proactive than to sit back and hope we never get a cease and desist letter from the trademark owner.
As a practice, I ask the entrepreneur to provide me with 5-10 potential names in order of priority. I do this for a few reasons. One reason is so that I’m making the entrepreneur aware that their first choice may not be available. Also, this is a way to help the entrepreneur get used to having a backup plan. Having a backup plan is always a good idea and new entrepreneurs need to learn how to have one. I take the list and search USPTO and the Department of State database where the company will do business and will be organized. (More on where to organize in Unit 9.) Another reason for the list is to consider the pros and cons of each name.
Once the entrepreneur selects a name, it can be reserved with the Department of State. If you are quickly going to organize this is not really a step you need to take as the name will be on the documents you file.
It is a good idea to file a trademark application for the name of the business with the USPTO. For more information, look here. If the entrepreneur is in Pennsylvania, we can also file for a trademark in Pennsylvania.
Most jurisdictions require that a company have a designator that indicates the entity structure. For example, if the company will be organized as a Limited Liability Company, it must have LLC at the end of it. If it is a corporation, it must have Corp. or Inc. at the end. Designators are required so that anyone doing business with the company will know whether the owners can potentially be held responsible for the business debts. If the company is a corporation or LLC, the owners are not personally liable unless they’ve done something to allow the protective veil to be pierced. (More on personal liability in Unit 8.)
