The brand chosen by a company can make or break its future success. Adopting a brand which is the same as, or similar to, an existing brand carries legal and commercial risks. In the early stages of launching a new company or brand, it is essential to check whether the proposed company name and logo are already in use in the market. The earlier the presence of a similar brand is identified the easier it will be to pivot the proposed company name and protect yourself. There are several ways to check whether brands are already in use and we have summarised below 5 of the most straightforward ways for you to start this process yourself.
1. Companies House
By law, UK companies looking to register at Companies House and are not permitted to have the same name as an existing company. It is possible to use a previously registered name as a trading name and register the new company under a different name, though it is common practice for company and trading names to match. A search of the proposed company name with the Companies House names availability checker will reveal whether the name has already been taken.
2. Trade Mark Search
Company names and logos are routinely registered as trade marks, giving businesses exclusive use of them in their markets. Use of a trade mark that is identifiable, or similar to, an existing trade mark in the same or similar market may therefore be an infringement. This could leave your company open to being sued and compelled to discontinue use of their brand. It is, therefore, vital to check that a proposed brand is not at risk of infringing an existing trade mark. A trade mark search will determine whether there are identical or similar registered trade marks. Searches should be made for all territories in which the proposed brand could be launched.
3. Social Media Checks
It is advisable to check the availability of social media ‘handles’ (e.g. @name on Twitter). Even if the proposed brand name is not a registered trade mark, it is possible for the use of a handle to lead to confusion and even give rise to liability for ‘passing off’. Passing off involves the use of a brand or marketing that the general public could mistake for another brand, causing damage to goodwill in that brand. Liability for passing off could entail having to pay damages and discontinuing the brand. Checking existing social media handles will also reveal whether useful handles have already been taken, which may affect the decision for adopting the proposed brand name and might cause a change in strategy.
4. Domain Name Registration
It is useful to check whether appropriate domain names are available. Again, if the desired domain names (or similar domain names) have already been registered it could affect the decision to proceed with the proposed brand name.
5. Internet Searches
A Google search for the proposed brand name is advised in all cases as it identifies any other potential risks of passing off or other unhelpful uses of the name, such as offensive or undermining connotations.
In practice, a proposed brand may not be completely free of any risks. The key is to balance commercial benefits against any risks with all of the information available to you. For further information or assistance on pre-launch clearance of brands, please contact Matthew Pryke.