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Before incorporating you should check to see if the business name you want to use is available. There are three searches you must do.

1. Corporate Name

Whether you are forming a corporation, LLC or LP you will need to check and see if the name is available for use as an entity name. This involves visiting the website of the Secretary of State in the state you want to incorporate in and searching for name availability. (You should search for name availability for any state you want to qualify to do business in as well, as we will discuss ahead.) Also know that some states won’t allow certain words such as ‘financial’ or ‘insurance’ in the corporate name without having a special license in the field involved.

Be careful on this part of the search. States are very lenient in name availability, which is understandable since they want as many formations and filing fees to be sent in as possible. If the name is not a direct match, they’ll let it through.

So, for example, you may find that the proposed business name of your new computer consulting firm – Xcel Computing, Inc. – is available with the state. But what if there is another computer consulting business in your area named Xcel Consulting, Inc.? The state won’t mind. They want the fees. But will Xcel Consulting have a problem with your new name? Of course they will. There will be confusion in the marketplace and they will stand to lose business with you operating under a similar name. (Of course, you may benefit initially from the confusion. But if Xcel Consulting is not good at what they do eventually the negative word of mouth will be confused with your company, too.)

Xcel Consulting may have the right to send a cease and desist letter stopping you from using Xcel Computing. What if this arrives after you have spent $20,000 on a logo and signage and printing? You may be out that money. The point here is that you can’t rely only on the Secretary of State’s website for name availability. While they won’t allow you to form as Xcel Consulting because it is already directly taken, they will let you form Xcel Computing, even though that name will get you in trouble on several different levels. So we have to do some more searches.

But first, there is the issue of forming in a good state, like Nevada, and then qualifying to do business in another state like California. You should see if the name is available in both states. If it is not you have two choices for proceeding. One way, in our example, is to use another name in California. So if Nevada allowed Xcel Computing, Inc. but the name was taken in California you could qualify the company to do business in California under a different name. But technically your official corporate name in California would be fairly unwieldy: Xcel Computing, Inc. doing business in California as Xcel Consulting, Inc. Do you want to put that on every check and document? The second method is much easier: Find a name that works in both states.

2. Domain Name

Almost every business has a website nowadays. It is the new business card. It is a way for the public to review and gauge you. And in terms of building business credit many lenders will require that you have a website as an indicator of your seriousness towards business.

It is best if your domain name is identical to or at least very similar to your business name. As you probably already know, it is very easy to see if a domain is taken. Just type in

www.__________.com, with the blank space representing the name you are considering. With so many domain names taken, if it is clean and the exact name you want, it may make sense to buy it right then. Even if you change the name later you have only spent $20 or so to tie it up.

3. Trademark Search

The trademark search is the most important search you will conduct. This is because a trademark trumps a corporate name and a domain name. A trademark is king of the hill here.

An example explains why. Suppose in your home state the name McDonald’s Healthy Mush is available for use as a corporate name. Suppose you can obtain the domain name www.mcdonaldshealthymush.com. All is good so far. When you go to uspto.gov (the U.S. Patent and Trademark Office’s very helpful website) and do a trademark search you find a number of McDonald’s marks but nothing under McDonald’s Healthy Mush for the category of nutritious, groovy oatmeal. You may think you are good to go.

The problem is that McDonald’s, the massive hamburger chain, maintains and asserts a very strong trademark protection for their name in all categories of food. If you use their name in any phase of food production or sales (even if your own name is McDonald) they will have their attorneys demanding that you cease and desist and will promptly take you to court if you don’t. (That is how the big companies do it, and so would you in their shoes.)

So the fact that you can incorporate under the name McDonald’s and get a domain name based on the name McDonald’s is of no consequence. The trademark, which protects your name to the exclusion of others when you do business with the public, is the hurdle you want to clear.

We will discuss trademarks again in Chapter Nine. You also can download a free eBook Winning With Trademarks from www.corporatedirect.com. For now know that you want the corporate name, the domain name and the trademark all to be clear when starting your business. This may mean coming up with a more unique name than you at first anticipated. But if unique is memorable, and is remembered, that is a good thing for you in your new business.