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Your business name lets the world know who you are and how you present your business to the world. There are a variety of name types to consider, such as assumed names, legal names, conflict names, domain names, and trademarks. Before deciding on a name, there are important steps and decisions that need to be made to ensure that the name you'd like to use is available and accepted by all states you plan on doing business in. Business names should be created with long-term plans in mind while also conforming to individual state rules. Lori Ann Fox, Government Relations and Regional Attorney at CT, reviews all of this and more including compliance requirements.
Greg Corombos: Hi, I’m Greg Corombos. Our guest this week is Lori Ann Fox, Government Relations and Regional Attorney at CT Corporation. She joins me to discuss the importance of naming your business, and the right way to go about doing that. Lori Ann, welcome back.
Lori Ann Fox: Thank you, Greg. I’m happy to be back.
GC: Let’s start with the very basics. Why is a business name so important?
LF: There are a lot of things important about a business name, but to me, the most important thing is the fact that it’s your identity to the world. It’s how you present yourself to the world. It’s kind of like the old saying “We are our names”. The same thing goes for a business. What happens is whatever name you choose, that’s how you’ll be known. It’s not that you can’t change it over time, but you want to think about all the variables, all the pieces that go into who you are as an entity, what you’re offering--services, products, etc.
GC: Talk about those components a little bit more. What do you mean by that?
LF: The components to a name are a number of different issues. Names are diverse. We have our legal name or true name, and that’s the name you’re going to put on file when you form your entity in a state. Then, when you go to another state, you’ll file to register as a foreign business doing business in that state--not that you’re international or anything at that point--but within the U.S. That name may or may not be available, so you could end up with what we call a fictitious or conflict name--it depends on the state. I like to use the term “conflict name” because it means your name is unavailable in this foreign state, and you have to use another name that you do business under. You also have assumed names. Some businesses have voluntary assumed names where they choose to do business under another name. Some people will refer to that as a DBA. You also have domain names, so for your website when you’re presenting yourself, you have that name. You also have the consideration for trademarks, both on the state and the federal side.
GC: There are so many name types, as you just explained. What should folks keep in mind when choosing a name?
LF: There are two big things you don’t want to do. You don’t want to run into the situation where you name is unavailable. So when you’re coming up with names, start doing a lot of searches. You can do them on the internet, you can look in books--people used to look at the yellow pages. I don’t really do that anymore--they still drop it off now and again. Whatever your favorite search engine is, look on the USPTO website for trademarks, look at the classifications there. Because what you never want to do with a name is a) not be able to use it and b) infringe on someone else’s rights.
GC: What about things to avoid. We talked about making sure it’s available first of all. What are some other things you would definitely want to not deal with?
LF: You also have to think about required words. So when you’re forming an entity, there are certain words or indicators for the entity types. So for example on a corporation, you might have to use “Inc” or “Co” or “Corp”--something of that nature. For a limited liability company, that would be an “LLC”, or you might be able to use the word “Limited” or “LTD”. You have to check each state to see what those required words are.
You also have issues with potentially prohibited words. “Olympic” is a great example of a word you typically cannot use. If you are in a regulated industry, such as banking, engineering, medical, legal--there are a number of regulated industries where you have to be wise and now what has to be required. Does another agency have to approve? And how do you go about working with that?
GC: Let’s talk about the legal side. Even though you might have a simple, catchy name, there are some things you need to take care of in terms of crossing the T’s and dotting the I’s. What do you need to do to secure and protect the name you come up with.
LF: Where we’re going to start is a) you’ll determine which entity type your business is going to be. You’re going to want to think long-term about your name as well. So don’t just think about a business plan for the first one to three years, think 20, 50, 100 years, and all of the potential locations where you want to expand. You’ll start with choosing your entity type. You’ll check to see if the name is available there, and if it is, you’ll go ahead and register. If you’re going to use an assumed name, you’re going to want to file that as well. You’ll also want to check in the foreign states where you know you’ll be doing business. And if you’re not ready to register there, you can file a name registration, which is a long-term protection. It typically goes through the calendar year, but you will need to potentially renew that. At the same time, you'll want to consider assumed names in foreign states where you’re registered as well. Then you want to think about your domain names. So I always look at names as a big package. You’ll want to check state and federal trademarks--if you need one, and if so, where. Do you need it on the federal side? On the state side? What will do the best? Because again, names are packaging to me. It’s your brand, it’s your identity, it’s who you are, and how you’re doing business. Once you’ve made those determinations, you’ll start your state filings or potentially your USPTO filing as well, along with the domain name.
GC: Let’s focus a little more on filing in the domestic state where your filing in your original form, what are the important things to keep in mind there.
LF: There, again, you’re going to take your required and prohibited words, regulated industry issues into consideration. You’ll go ahead and file your formation document if your name is available. You can do a name reservation if you’re not ready to file yet, meaning you’ll have a short-term protection for the name so that you can hold on to it, nobody else can get it--although you’ll want to check each state to see exactly how much and how long they protect that. Then you’ll file your formation document with the state, and you’ll file an assumed name if you’re going to be using one, and you’ll want to know on the assumed name side whether you only have to file on the state level or do you also have to file on the local level.
GC: Talk a little bit about trademarking. How do you go about that? How do you even know if you’re eligible for that?
LF: Trademarking is a little bit more complicated, and has a lot more pieces to it. My suggestion is that you speak with a professional and determine what your needs are based on your business plan. Once you make the determination, if it’s on the federal side, you can go to the U.S. patent trademark office website. You can check to see what’s available. You’ll also want to know what classifications or categories under which you need to register. You'll make those determinations, file electronically (which is the preferred manner). Now that can take awhile to be approved, but it’s a bit part of the package if you’re going to go in that direction. Sometimes, I’ve seen entities where they have one parent company. They’ll create a holding company just for names or trademarks. From there, they’ll be able to trademark a name for a product or service, and they can license it out of affiliated companies or through agreements with others.
GC: So once you’ve filed, one you’ve done the paperwork we just talked about, what do you need to know about ongoing compliance considerations? In other words, once you’ve set all this up, are you pretty much free to run? Or are there things you need to keep updating?
LF: In order to keep your legal name or your true name in your state of domesticity, you will have some compliance considerations--although they don’t really have to do with the name itself. What you’ll want to make sure you do is to pay your taxes, annually or biannually, depending on the entity type you’ve chosen. You’re going to want to make certain you file your annual reports, or any other annual or biannual or regular filings that the state requires in order for you to maintain your good standing in that state of domesticity. Because some states will protect your name for a short period of time if you lose good standing, but some won’t. And there is also a point in time where most states will allow your name to be taken, so it’s really important to keep up with those domestic filings. Then, because you’re also filed in foreign states presumably, you’ll want to also keep up with those filings as well, because again you want to maintain your good standing, maintain whatever name it is you’re using. On the assumed name side, it’s all the same. It’s going to sound very repetitive, but you’ll want to calendar and know what your requirements are in terms of timing. Often assumed names are required to be renewed five to ten years. So check the state requirements, know what they are, and stay on top of those filings because you don’t want to lose an assumed name if it’s really important for your business in a particular location. On the trademark side, you also have compliance requirements. You’ll want to know on the state trademark side what the filing requirement is--often it’s five or ten years. It depends on the USPTO on the federal side. You want to make certain that the USPTO know that the name is still in use, so you’ll have filings for compliance there as well.
Now if you went the direction of, backing up a little bit, and starting with the name reservation for your domestic entity before you form, just know how many times you can renew it, and make certain you stay on top of those. On the name registration for the foreign states, you’ll want to do the same thing.
GC: Fantastic advice. And I know CT Corporation has been around more than a century so, so that name has worked out very well. Lori Ann, thanks so much for your time today.
LF: Thank you, Greg. Have a wonderful day, and thank you for joining us!
GC: Lori Ann Fox is Government Relations and Regional Attorney at CT Corporation. I’m Greg Corombos
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