A friend asked me the other day whether she could use a particular name for her new business if someone already uses the name for their personal blog. She explained that she and her business partner have been struggling to come up with a name for their blossoming business and that every time they come up with a name, they Google it only to find it is already in use. She explained that this blog appears to be a personal journal of a woman who is located outside of the United States. This is the advice I gave my friend.
A trademark is a brand name that identifies a particular product or service that is being sold in commerce. In my friend’s case, her company would be selling services. If someone else offers similar services in the United States, and particularly in the same geographic area, under the same or similar name, then I would advise her to steer clear from using that name. However, because the website she found is of a personal blog, is located outside of the United States, and does not appear to be offering any services for sale, let alone of the type my friend will be offering, I told her that this personal blog should not alone stop her from moving forward with the proposed name. I also did a quick search of the Trademark Office’s database and found nothing registered under the proposed name.
It would be different, of course, if she were to register a very similar domain name as that of a pre-existing domain name hoping that it might cause Internet users to accidentally land on her page instead of on the pre-existing website. In that case, the owner of the pre-existing domain name could accuse her of cybersquatting and file a UDRP claim with ICANN. However, if she in good faith chooses a name for her new business that no one else appears to be using for the services her business will be offering and she registers a domain name for her business, she should be OK.
Will she be 100% protected against claims of infringement? Of course not. In fact, there could be someone else out there using the name for similar services who maybe does not have a website, or whose website did not readily appear in my friend’s Google search. However, United States trademark law only grants the owner the exclusive rights to use a name for a particular type of product or services, and only in United States commerce. Therefore, in order for someone to have a good claim against her, they would have to already be using the name in a market that could cause a likelihood of confusion among potential customers. While there are services that, for a few hundred dollars, will do extensive searches to find every possible use of a proposed brand name (and then you can pay a trademark lawyer to review the binder of results), for a small local business like my friend’s, her Google search and our search of the Trademark Office’s database should be more than adequate. I think my friend and her business partner can feel pretty comfortable moving forward with their name and focus on the next stages of their business venture!
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