Right now I am 30,000 feet over Africa yet client challenges are still on my mind. Every start up  company  needs a name, and it is surprisingly hard to find a good one, not so much because these companies  (not to mention lawyers) are unimaginative, but because so many  names are taken. One start up client of mine recently had more difficulty than usual, and their travails have inspired me to write this blog.  

Rule Number 1: Google the name.

This should go without saying: pick a name that you don’t think is in use by someone else. Do an Internet search for the name you think you want. If someone else is using the name for a business similar in any way to yours, move on. Uses in other industries may not be a problem, and if you love the name go to Rule Number 2.

Rule Number 2: Search the Secretary of State’s office in your state and in Delaware, if that is where you want to incorporate.

One of my clients spent tons of time trying to work out variations on familiar Boston terms such as “Beacon,” "Back Bay,” and “Lighthouse.” Their principle method of selecting a name was to combine one of these terms with some other word and then call and ask me if the result was “OK.” One of our paralegals would then search the name at the Secretary of State’s office and send me a list of possible conflicts. I would then inform the client. As it happened, a lot of the names were taken. The Secretary of State will not give you a name that is the same as that of another company. You can get away with small variations – as far as the Secretary of State is concerned. But…

What are you going to do when some well established and well heeled Boston company sends you a nastygram accusing you of infringing their trademark? Do you love the name enough to engage in a fight over it? Remember, you might lose and then have to change your name anyway.

One more thing, you can search the Secretary of State in Massachusetts and in Delaware yourself. You don’t need to pay me or anyone else .

Rule Number 3: Check the US Patent and Trademark Office for conflicting trademark registrations and pending applications for registration.

Do a basic search here. Again, this is a search you can do yourself. If someone else has a registered or pending mark that is similar to what you want, and if they are operating in a field that is related to yours, consider choosing a different mark. Keep in mind that people who spend the money to register a trademark are likely to want to protect it against others. You will need to order a more detailed professional search , but that comes after your selection has passed the test of the four rules.

Rule Number 4: Check the domain name and similar names.

Again, you can do a good search yourself by going to www.whois.net. Check the domain name that you want as well as any variations that you can think of. For example if your company name is Foley Hoag LLP, you may want foleyhoag.com, fh.com, foleyhoaglaw.com and so on.

Once you have a name that meets all of these initial requirements, you are ready to spend money. You should order a professional trademark search and have an experienced lawyer review it. If the search is clear, you can reserve the name at the Secretary of State offices in Massachusetts and Delaware. You may wish to have your lawyer help with that process as well, since the next step is actual incorporation, and you certainly want that done right . Finally, you can register your domain name at Verio or similar sites.