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Choosing a good name for your new venture can be very challenging – but it’s also very important.
Shakespeare, in Romeo and Juliet, gives Juliet the lines:
“What’s in a name? That which we call a rose
By any other name would smell as sweet;
So Romeo would, were he not Romeo call’d.”
Names matter
Although you may think that your product or service is so compelling, it will be a success whatever you call it, I have found very few people in marketing and none in the legal profession that thinks the name chosen is not a vitally important consideration.
So it is definitely worth spending a bit of time at the start of your start-up making sure you get the name right. It is central to your brand’s personality, and it acts as a hook on which the entire persona of the business hangs.
The most important consideration is whether it is legal to use a particular name.
This should not be determined by whether the company name is free, there is a catchy domain name unregistered or you have registered your business in some third-party private directory.
No, the legality of the use of the name depends on whether its use would infringe an existing trade mark or whether it could be considered to be passing off by being too similar and taking goodwill from an existing unregistered mark.
Trade mark law is in essence consumer protection: it is there to stop a consumer from mistakenly buying a product or service from someone they didn’t intend to, because they were confused by marking on the purchased product or service which were similar or identical to the markings they were familiar with.
To prevent this happening, the trade mark system was set up. This allows owners of existing marks to prevent the registration of new marks which are the same or confusingly similar to their marks.
The existing owners can prevent registration for any goods or services that are the same or similar to the ones they have registered; or, if the mark has a reputation, for any goods and services at all.
The first thing you should do once you have thought of a name, therefore, is to search the trade mark databases to see if there is any chance that its use may infringe an existing trade mark. The most common international trade mark database is called TMView and there are regional versions also e.g. see the ASEAN TMView
The next thing you should consider is whether the name you want to register is distinctive. If you do successfully register it, will you be able to build yourself a strong brand around it? That gives you some protection from copycats and those that wish to freeride on the hard work you have done by selling their product or service with a name that is similar to yours.
You also must avoid using words that:
- are purely descriptive of the product or service you are selling (as anyone should be able to use such a name);
- lack distinctiveness (e.g. by being related to the place you are operating your business from);
- are offensive;
- or are too similar to a specially protected symbol (for example, a national flag or the Olympic rings).
If your mark does lack distinctiveness, all is not lost as it can “acquire distinctiveness” – and so be eligible for registration as a trade mark, if you use it so much that it becomes associated with your product or service in the minds of a large proportion of the relevant public.
For example, Tesco has managed to use the common phrase ‘Every little helps’ for so long in its advertising and marketing that it was eventually able to register it as a trade mark.
However, it is probably best to choose a name that is inherently distinctive and unique from the outset, if you can.
This can either be:
- a made-up name. For example, Diageo, Tesco and Syngenta had no meaning before being used by the famous companies that are now associated with them.
- a normal word, but used in a different context. No one would have associated “Orange” with selling mobile phone services, “Apple” with computer devices, or “Shell” with selling petrol.
Once you have what you think is a good name from a trade mark perspective there are of course a number of other things to consider before you settle on it for your venture.
These include:
Domain names
Are .com and or other domain names available for your preferred trade mark? These can easily be checked and, if they are free, registered from various service providers.
Company name
Your company name does not have to be the same as your trade mark; but if you want it to be, then remember that, in the UK, you are not allowed to register a company name that is the same as one that is already registered. You are also not allowed to register one if an existing company thinks there is a chance that interested parties will confuse their name with yours and write to the wrong entity. You should therefore check the company name database at Companies House – GOV.UK (www.gov.uk) (or the national equivalent).
Social Media handles
If you think a strong presence on Twitter, Facebook, Instagram or another social network is going to be important for your business, it is important to check that the username is available for these networks.
Translations
If you think you may trade overseas or have foreign customers, which is quite likely, then it is also important to check what your new name means in other languages. It can be very unfortunate if after using your name for a number of years you start to export, only to discover your name has unwelcome connotations in the country you are entering.
