A brand name is one of the most significant commercial decisions a business makes. It is also one of the most legally fraught. The cost of choosing a name that belongs to someone else — or that cannot be protected — is far higher than the cost of checking properly before you commit.
The Legal Risks of a Bad Name Choice
- Infringement. If your chosen name is identical or confusingly similar to a registered trade mark in the same class, you are infringing that mark from the moment you start using it. The owner can seek an injunction, damages, and an account of your profits. They can also require you to change your name — which, once you have invested in branding, website, signage, and marketing, is expensive and disruptive.
- Passing off. Even if a name is not registered, a business that has built up goodwill in it can bring a passing off claim if your use of a similar name causes consumers to believe there is a connection. Passing off does not require registration — but it does require established goodwill.
- Rejection of your trade mark application. A name that conflicts with an earlier mark will be refused registration or opposed — meaning you have built your business on a name you cannot protect.
Descriptive Names
Names that describe what you do — "Kent Property Lawyers", "Fast Accounts", "Fresh Organic Food" — are commercially understandable but legally weak. Descriptive marks are difficult to register (UKIPO requires evidence of acquired distinctiveness through use) and difficult to defend against competitors using similar descriptions.
A distinctive name — invented, arbitrary, or suggestive — is far easier to register and far stronger as a trade mark asset.
The Checks to Carry Out
- Trade mark register search. Before you commit to a name, search the UKIPO register (and EUIPO if you trade or intend to trade in the EU) for identical and similar marks in your relevant classes. This is not just a keyword search — it requires an assessment of phonetic, visual, and conceptual similarity.
- Domain names. Is the .co.uk and .com domain available? A name that is registered as a trade mark but whose domain is owned by a third party creates a practical problem even if there is no legal conflict.
- Companies House. Is there a company registered at Companies House with an identical or very similar name? This is not a trade mark conflict but can cause confusion and reputational issues.
- Social media handles. Are the handles available across the platforms your business will use? Consistency matters for brand recognition and SEO.
- Internet and marketplace search. Is the name in active use by a business in your sector, even without a registered trade mark? Unregistered use can give rise to passing off rights.
When You Have Found Your Name
File a trade mark application before you launch, if possible — or as soon as possible after. Your registration date establishes your priority. A competitor who files after you but launches first does not take precedence if you filed first.
Bonsai Law's Chartered Trade Mark Attorney runs clearance searches and registers brand names for businesses across the UK. Check the name before you commit to it — it is far cheaper than rebranding later.
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