Choosing a name for your business is tough, which might have you wondering: can two businesses have the same name in different states? That’s actually a tricky question. In this guide, we’ll cover the basics you should know if you’re on the fence about using a name that’s claimed in another state.
In some cases, yes. In other cases, no. That’s the simplest answer to the question. The truth is, business naming rights are a little more complicated than you might expect.
As a very general rule, the first person to use a particular name in commerce has the first claim to it. But different types of names have different levels of protection — at both the state and federal levels. To start, let’s discuss the different types of names and their protections.
A typical LLC first obtains its legal name by registering under that name in its home state by filing their state’s formation documents (often called the Articles of Organization). But before it can register under a given name, the business has to ensure that the name hasn’t already been claimed by another business in that same state. Each state protects the registered business names used in its jurisdiction.
Every state requires business names to be distinguishable, but some states are stricter than others about what constitutes a “distinguishable” name. Once you’ve thought of a name, you can use your state’s name search tool to check whether it’s available in your area. If the name is already taken, you’ll need to pick another one. If the name is available, that means it’s available in your state (unless the name is protected by a federal trademark).
Let’s say you’ve searched your name and found that someone else is using your desired name in another state. In those cases, you have to weigh your options; you might be able to use it. First, you’ll want to consider the identity of the business with the same name. If it’s another small business owner, they might not be bothered by you using it — especially if you’re in different industries. A larger brand, however, may react differently (and have more legal resources to enforce its claims).
If you have aspirations to expand into other states, you’ll want to pick a more distinct name. Choosing a name that’s already in use elsewhere somewhat limits your growth to your starting state.
A DBA Name, or “doing business as” name allows businesses to operate under a name that’s different from their legal name. LLCs and corporations might use a DBA for an alternative product line. Sole proprietors or limited partnerships might adopt a DBA to conduct business activities under a name that sounds more like a traditional entity name.
Every state approaches DBAs a little differently (even calling them different titles, like fictitious names, trade names, or assumed names). Some states don’t require businesses to register their DBAs. In many states, DBAs aren’t protected for exclusive use like legal names. Infringing on a DBA is often less problematic than infringing on a legal name or trademark, but every state is different.
Trademarks are where business names get a bit more complicated. Usually, a trademark is a design, slogan, or another visual or auditory sample that a business has claimed as its own to represent its products. A service mark is a similar mark that represents a company’s services. In many cases, a trademark is almost interchangeable with the brand’s identity. A legal name can sometimes be used within a trademark, especially when it’s included in a logo.
Under U.S. trademark law, the first person to use a particular trademark owns it for that particular industry. Registration isn’t required. But there are definite perks to taking the next step and registering a trademark. Most importantly, a federal trademark registration protects your mark nationwide; if someone infringes on your mark, you have an objective, verifiable tool to take legal action against them.
Whenever you’re picking a name, you should conduct a USPTO trademark search of the federal database to ensure you’re not infringing on any protected marks.
When you’re brainstorming a business name, it’s imperative that you do your due diligence with a business name availability search and ensure that your name doesn’t infringe on any trademarks. Ideally, you’ll find a name that’s unique to you — which frankly takes a lot of work. After all that search engine legwork, you’d hate to learn that someone else registered your name out from under you.
To protect your name, we recommend reserving your name as soon as possible. Each state offers a name reservation form; for a fee, the state will protect your desired name for a period of time (often 120 days, but it varies). Our name reservation service can make this process a snap, too.
Reserving your name is just the first step; it doesn’t permanently claim your name. Before the name reservation expires, you’ll need to register your name by forming your business under that name. In every state, this process looks a little different, but it typically entails filing a form like the Articles of Organization or Articles of Incorporation. Once you’ve registered your business, you’ll have business name protection within your state.
We can take all the hassle out of registering your business with our $0 LLC formation service.
Using an untrademarked name that’s already claimed in another state might be perfectly legal, but it will still have its drawbacks. If these negatives worry you, check out our guide on how to change your LLC’s name.
Business names that aren’t registered trademarks are still protected by common law. Under common law, identical names generally don’t cause issues if the two businesses in question aren’t business competitors. But if you’re providing a similar product or service, using the same name creates unfair competition. It’s probably a no-go.
If you have any aspirations of expanding your business in the future, then choosing a name that matches another business is already limiting your options. You won’t be able to expand into a state where the other business has a presence. Even if they’re only operating in one state right now, they might expand before you do, limiting your expansion even further. Picking your own name reduces that risk.
When someone googles your business, who will they find as the top search result? If there are multiple businesses with your name in other states, they might not see your business first — if at all. Naming laws require you to avoid consumer confusion.
Establishing an online and social media presence is a huge asset for small businesses; it’s a great way to market yourself and engage with potential clients. But names on the internet are completely first-come, first-serve. If another business is already using your desired social handle or domain name, you’re out of luck. A truly unique name reduces that risk.
Ready to create your website? We can help you register and maintain your domain name with minimal hassle.
We can’t create your business name for you, but we can help you protect it. Whether you need help reserving your name, searching your name’s availability, or registering a domain name, we can help. We’ll even file your business formation paperwork at zero cost so you can focus on what matters: running your business.
Disclaimer: The content on this page is for informational purposes only, and does not constitute legal, tax, or accounting advice. If you have specific questions about any of these topics, seek the counsel of a licensed professional.
It depends. If the two businesses aren’t competitors (by geographic market or industry standards), then they can probably peacefully coexist. But if they’re competing businesses, common law dictates that the first person to use the name has the primary claim to it. However, common law claims are more difficult to prove than registered marks if there’s a legal dispute.
If one of the businesses has trademark protections, they can usually pursue legal action against businesses that commit willful infringement (or even unintentional infringement) of their mark. If you have concerns about your naming rights, we recommend consulting with a trademark attorney.
No. The first limited liability company to register their business under a given name (or reserve it and register before the reservation expires) will claim the name exclusively. Any later filings with the same name will be rejected by the state.
Typically, yes. Names are protected within the jurisdiction where they’re registered. So a business name that’s protected in the U.K. isn’t necessarily protected in the U.S. because they’re unique geographic locations. If needed, you can register a trademark in multiple countries to expand the scope of your name’s protections.
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