Along with legal issues in the fashion industry, we love to talk about marketing and branding in general. Both of us (Rachel & Maria) studied and worked in the marketing industry prior to becoming attorneys. Together we wrote this article, a trifecta of our professional experience. Please use this article for general information, but not as legal advice, as every situation is unique.

1. Research!  Research!  Research!

Founders of small companies and startups often take two paths to naming their new company. They either choose a descriptive name that explains the products and services of the company or they choose a random name that is meaningful in their personal lives, or that they believe will be memorable. After making the initial choice, few founders put much thought or time into researching their chosen company name. This can often be a costly mistake.

Researching your intended company name from the start will help you avoid the potential costs of rebranding and legal complications that may come from consumers confusing your company with other similarly named companies. Along with confusion with other brands or companies, you should also research into the cultural sensitivities to certain names. Finally, you should do some marketing testing to see if your brand name is truly as memorable as you believe. This research is an important step whenever you choose a company name, a brand name, or a product name.

Law On The Runway is here to help you with your research, but if you choose not to engage a law firm to conduct the preliminary search for your naming needs,  you can do research yourself.  You should look at three major search engines: (1) the Secretary of State website corporation search engine of the state in which your business is or will be based in; (2) USPTO; and (3) Google (or other general search engine).

Broadly, make sure the following are occurring: (1) there are no other similar businesses in the states you plan to operate in, with the same name in the same industry; (2) there are no current or pending registrations on the USPTO register of the same brand in the same industry; (3) globally, no one is using the same or confusingly similar mark; (4) those using the same and/or similar mark (in a different industry) have not taken over all the social media account names and easy to remember website URLs (internet address); (5) and there is no controversy or negative definitions surrounding the name.

If you are searching for logos, try Google image search to assist you in finding similar images.

We say “broadly” because you can also pay a third party company to conduct research for you and they will send you (usually) a thick booklet with all the search results of your brand.  However, you will be left with the assessment of what it all means or what the risk is of someone coming after you for trademark infringement, which is why a branding professional, such as a branding specialist or Law On The Runway would be better at helping you out with this.

2. Acquire the Social Media Accounts & URL’s

As we mentioned under factor one, it is important to check and see if there are social media accounts or URL’s which could cause confusion to consumers. If you didn’t find any that would potentially conflict with your branding needs, you should then acquire a social media account in all the major channels, even if you do not plan to use them right away. Social media has truly grown to be one of the top ways for businesses to advertise its goods and services.  In your search, it’s important to see whether you will be able to reclaim a social media account to utilize it, or whether you can come up with something catchy enough which incorporates you brand that people will be able to figure it out.  To show how important this is, we’ve had some clients abandon brands or alter brand names because the social media accounts are all taken.  Do the same with URL’s. Check to see which ones are available with your chosen company or brand name and secure your rights at least one of those website URL’s right away through an internet domain registry.

3. Determine the Voice of Your Brand.

Your product, be it clothing or a new fashion-tech/e-commerce company will be better packaged once you determine the voice of your brand.  Your packaging – e.g., the brand name and its creative aspects (the look of your website, the tags on clothing, marketing materials) will all have to come together as one, so that your brand remains strong in the minds of your consumers as they interact with the brand through various online channels and in person.

 No matter what kind of company you are, you will always have some kind of mission, consumer base or a certain “look” that you want to achieve.  You must be consistent with how you style your brand or your brand will be weak and not “stick” with your consumers.  Ultimately, your goal is that when consumers hear your brand or company name, a certain image pops up in their head, and a certain feeling (the voice / your mission) is evoked within them and they connect that (a hopefully good and memorable feeling) to the products or services you offer.

4. Register Your Trademark with the USPTO.

Registering your trademark is advisable because it will give you the most protection.  This phase is generally left a little later in the game – after you have done your research and you have developed the creative aspects of the brand.**  You would also want to make sure that you are “married” to the brand and the creative aspects of it as a whole because registration filing fee is around $325 and you must continue to use your mark as is or you risk “abandonment” of the mark. “Abandonment” is the notion that you are no longer using your registered mark as stated in your trademark registration records.  This ultimately means that your registration is now invalid and you lose federal protection.

**On a side note, there are certain nuances here regarding the difference between a “word mark” and “design mark” (best to contact a trademark lawyer for more information).

5. Register Your Company Name with the County.

You can either incorporate your business with your brand name or you can register the brand as “Doing Business As” (DBA)  with the county in which business has its principal place of business.   If you are not incorporated under the brand name that you are using in the public, a DBA filing is required.  This additionally protects your brand because as you saw above, it will place others on notice that you own the brand or company name.

Branding products or creating a company identity can be a complicated process where you will have to balance several variables. We’re here to help you out. Please email Rachel([email protected]) or Maria ([email protected]) if you have questions. As always, our blog articles are meant as a source of general information, and not legal advice.