Billings, MT asked in Business Law, Intellectual Property, Trademark, Business Formation and Copyright for Montana

Q: What are some ways I can check on the legal rights I have to a potential name for a developing small business?

I am interested in starting a freelance writing business. I recently learned that before I can proceed with the name I will need to confirm that the name is not at all infringing on any copyright laws. I am pretty new to this stuff and I'd really appreciate some advice for how to go about finding out whether or not this name will be suitable and won't be causing me any problems down the road. The name I have chosen is "Charlotte's Web", like the book. Is it impossible for me to use this name for my business because the novel is copyrighted by the author? Thanks.

1 Lawyer Answer
Will Blackton
Will Blackton
  • Intellectual Property Lawyer
  • Raleigh, NC

A: Short phrases and names are generally not protected by copyright law. What you're probably thinking of is trademark infringement - the key question being, will your name confuse consumers, that is, might consumers believe that your company is affiliated with or endorsed by E. B. White, Harper & Brothers, Hanna-Barbera Productions, Universal, or any of the other entities involved with a production of Charlotte's Web who may retain rights in that name.

Is it impossible to use the name? No. The secretary of state where you register your business is probably going to allow you to register any business name that isn't already taken (with a few more exceptions varying by state, no profanity for example). Will you be sued if you incorporate using that name? Maybe. Trademark holders must sue in many cases to preserve their legal rights. So, even if the trademark holder doesn't want to put you out of business with a lawsuit, they have may have to or else they'll lose their ability to assert their rights against anyone else.

If you're not actually incorporating or organizing an entity to do business, you may have to file a certificate of assumed name with your state's secretary of state or county register of deeds.

To build a brand and to strengthen your own claim to the intellectual property rights in your business name, pick a name that has nothing to do with your industry or make up a word. Apple computers, Kleenex tissues, and Microsoft are all great examples of brands with easily protectable names.

Also, even if someone was looking for your service by name, it would be pretty difficult to find your business's website by searching for "Charlotte's Web."

Don't act on any of the statements above without consulting with an attorney familiar with the laws of your state.

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