17 Nov Early Stage, Step 3: Naming the entity
Editor’s note: This is the third in a series of articles on developing start-up companies in the technology or biotechnology sectors.
Madison, Wis. – In Step 1 of our Early Stage series, we explained how to protect your intellectual property, and in Step 2 we discussed choosing a domain name. Now, in Step 3, we’ll address choosing a trademark/brand name and business name. Assuming that you have a viable domain name, then you should have simultaneously made sure that this name was available in the State of Wisconsin both as a business entity name as well as a trademark/brand name.
With respect to a trademark/brand name, we already have touched on the importance of minding your intellectual property in choosing a brand name and trademark name. Now, we’ll drill deeper into that subject.
Trademark: Generally speaking, this is a distinctive mark of authenticity through which the products or services of particular merchants may be distinguished from those of others. Trademarks may consist of any symbols in any form or words, but remember that since the function of a trademark is to point out distinctively the origin or ownership of the articles or services they identify, it follows that no sign or form of words may be appropriated as a valid trademark – especially if the use of such mark deceives or generates confusion in the market as to the true origin or ownership of the goods and services in question. The owner of a registered trademark has the exclusive right to its use.
Entity name and state filings: Now that you know whether you have a brand name/trademark name, what about the business entity name? This is really the easiest thing to check properly. First, you want to make sure that the name is available in Wisconsin. To do so, you go to the Wisconsin Department of Financial Institutions website, click on “corporate services,” and then click on “corporate registration information system.”
Next, search for the name that you are interested in to see if it is available. The website will show you whatever names are similar to or exactly like it in the State of Wisconsin. Remember, it is not the word or words to the right of the comma, such as Ltd., Inc., LLC, or the like. It is the word or words to the left of the comma that matter.
For example, assume you are looking up the name “Boucher” to see if it is available. You will find there are already several entities that contain the name Boucher, so you may not legally use one of those names.
You will have to substantially differentiate your name from those already registered. When you are satisfied that your proposed entity name is distinguishable from the others already in use, you may register it with the State of Wisconsin, and use it in Wisconsin.
Now that you have the name in Wisconsin, but you think you will have a regional or even a national business, you must check this throughout the United States. While you can do that yourself through a very tedious state-by-state process, some of which are online, some of which are not, we recommend that you use a professional service company. There are several options, including 101 incorporate.com and mycorporation.com.
If someone in another state has this name already in use, you will have to use an “assumed name” in that state. For example, suppose you were fortunate to register the name “Boucher, LLC” with the State of Wisconsin but later discovered that, in the Seattle area, a company already is legally doing business in the State of Washington with the name “Boucher, Inc.” The idea is to keep your corporate or entity name generally consistent throughout the country.
In the case of Washington State, if your business plan requires you to do business there, you may consider registering as “Boucher of Wisconsin, LLC,” or “Boucher Legal Services, LLC,” or something to differentiate you from the Seattle based “Boucher, Inc” that further research reveals to be a purveyor of gourmet coffee and specialty microbrews in the Pacific Northwest. In the alternative, if Washington State is not a particularly practical or meaningful market for your new business at this time, you may simply chose not do business there under the name of “Boucher” at all. However, if you desire to grow your business geographically, it is worth checking with each state to see if your entity name is available for use.
In the end, once you have wrapped up all these steps, the domain name, the trademark/brand name, and now the business entity name, you are prepared to form your entity. We’ll address that in Early Stage: Step 4.
Previous articles by Joe Boucher
• Joe Boucher: Early Stage Step 2: Choosing a domain name
• Joe Boucher: Starting a tech business? Step 1 is minding the intellectual property
• Joe Boucher: Madison is flourishing while Marinette is dying
The opinions expressed herein or statements made in the above column are solely those of the author, and do not necessarily reflect the views of Wisconsin Technology Network, LLC. WTN, LLC accepts no legal liability or responsibility for any claims made or opinions expressed herein.