I have really been blessed in the recent months with invitations to speak to groups of people. I just recently spoke at Arkansas Tech to the Engineering students graduating in May. The topic of discussion was Patents, Trademarks, and Copyright Infringement. I explained that I am not a Patent Attorney, but I would speak to the importance of such things when it comes to running one’s business. I then guided them to work with a Patent Attorney on specific questions.
As a business owner you have rights to the property created for and by your company. Even without filing for trademark protections or putting a copyright symbol on your works, the creation is what makes it belong to the owner. To check if your business name has already been chosen by someone else, perform an Entity Search in your State. This can be done by going to your State’s Secretary of State website and typing in variations of your prospective name. Completing this step in your business planning process can help you avoid issues and alleviate any potential problems in the future.
With that being said, you also have a duty. This duty cannot be waived by claiming ignorance or lack of knowledge. An article written for Entrepreneur Magazine by Lindsay LaVine titled When Business Names Confuse Consumers: The Basics of Trademark Law provides a basic understanding of the significance of creating a business name that is dissimilar to other businesses. This article explains the importance of very basic business principles that can have a huge impact on a business before it even gets off the ground.
Here I have summarized the seven factors from Ms. LaVine’s article a court looks at to determine whether a business name is too similar to an already existing business name.
She offers these seven factors as the following:
- The strength of the mark. Is it a generic symbol or one that identifies your particular brand?
- Commonality of the marks. Is the mark commonly used by third parties?
- Proof of actual confusion. Has the name caused confusion?
- Similarity of the marks. Comparing the names or marks, could one come to the conclusion that they were created to confuse.
- Similarity of services, service outlets, and customers. If one company is providing accounting services and the other supplies vending machines, it is less likely that a similarity in business names will cause any issues.
- Similarities of the parties’ advertising media. For Example, if both companies are targeting the same customers on Facebook.
- Defendant’s Intent. The defendant’s intent to cause confusion among consumers will be looked upon by an evaluation of their efforts to confuse.
For a copy of the whole article, visit https://www.entrepreneur.com/article/226140.
LynMarie’s next speaking engagement is at the University of Arkansas – Morrilton on Monday, February 12, 2018 to the Entrepreneurship class regarding The Importance of Hiring a Lawyer and Accountant.
LaVine, L. (2013). When Business Names Confuse Consumers: The Basics of Trademark Law. Retrieved November 18, 2017 from the World Wide Web at: https://www.entrepreneur.com/article/226140.
Disclaimer: LynMarie Liberty Ellington is an attorney licensed to practice law in the State of Arkansas. She is an attorney, but not your attorney unless you have a signed attorney/client agreement. The information provided via all print and digital materials is for informational purposes only and does not constitute legal advice. If you have a personal or business legal issue, please contact an attorney with knowledge on your topic and licensed to practice law in your jurisdiction.