November 2023

Considerations When Choosing a Brand Name Part 2.


Written by: Sam Berrin

What are some legal considerations when choosing a brand name (Part 2)?

This post relates back to Choosing a Brand Name Part 1 . Check that out for some ideas to consider during the ideation stage of choosing a brand name.

Even if one or several candidate names pass the ideation stage, there are other more legally driven considerations in the evaluation stage. I generally view the evaluation stage as at least two separate sub-phases: surface-level evaluation and deep-dive evaluation.

For the surface-level evaluation, basic questions should be asked to quickly determine if the candidate name can be eliminated. These questions tend to focus on viewing the name(s) in a vacuum. Put another way, the surface-level evaluation stage evaluates the candidate name unrelated to third party use, and only in relation to whether the candidate name, on its face, is likely to qualify for trademark protection. Questions like:

– Is the name too generic or descriptive of the product or services?
– Is the name mis-describing what the product or service is or does?
– Does the name play on or parity another well-known brand?
– Does the name include a geographic location that could tie the company to a specific place, or make an incorrect affiliation between a location and the brand?
– Is the name using someone else’s name or public persona in an unauthorized way?

The questions above are not exhaustive, but they are useful to ask to get a brand name (or handful of names) past the surface-level evaluation threshold. These legally-driven questions are intuitive enough so that they can likely be evaluated without a trademark attorney. However, if the answer is “yes” or “maybe” to any of the above then it is best to consult a trademark attorney before moving any further with the name.