LLC NAME AVAILABILITY WITH THE STATE AGENCY WHO FORMS LLCs.

Choosing an acceptable LLC name for your new limited liability company should be done early in the pre-formation process.

In all states, you cannot use a name which is the same as or too similar to another name already being used by another limited liability company or other legal entities (such as corporations) in a state.  In some states where companies can register fictitious names, those states will also not allow an LLC to use the name of a filed fictitious name as well.

So, prior to finalizing your LLC name choice, you should check with your state of formation to see if your name is available for use in that state for a limited liability company. Informal name checks are not binding and sometimes you can get an approval on the phone and then find out that the person processing your paperwork rejects your name because it is “deceptively similar” to another LLC name.

One way to prevent this surprise is to reserve an available name with the state. In most states, there is a process to reserve a name for a stated period upon the filing of a form and payment of a nominal fee.  Consider this when your LLC name is very important for your business.

TRADE NAME PROTECTION

Just because a name is available for use as an LLC name by the state agency who forms LLCs does not mean that there are no other potential issues with using that name to promote your business.  Trademark and trade name laws protect other people and businesses who are using a pre-existing name in the event someone else tries to use such name in its business and the use causes confusion in the marketplace.

Accordingly, you should check do some research to see if another business with a similar business model or similar products/services as yours is using your desired name in the areas where you will sell your products.  For local businesses, conduct local Internet searches and check in telephone books or in directory lists of local chambers of commerce.  For national businesses, you should research nationally and consider ordering a trademark search to see if there could be any potential issues.

Name litigation fights are very costly and will not arise until you have made huge investments in promoting your business and name.  Do your homework on the front end and ensure at the beginning of your LLC business that your chosen name is proper.

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