I am not a lawyer. The notes contained within this post do not constitute legal advice. Regardless, since I began using the name Odd Bird Studio in 2011, several other businesses using the same name have cropped up. This compels me to touch upon a simple procedure - I would have thought common sense - known as due diligence.
In a nutshell, due diligence is doing your homework. While there are many factors to consider when choosing a fictitious name - the image it conjures, its memorability, its descriptiveness - one imperative goal is to choose something unique, which includes a URL not yet in use. In the United States, it is perfectly legal (although perhaps not advisable) for multiple, unique entities to share the same business name. However, when the entities are in the same business, the first entity to use the name is legally protected. According to NOLO:
To stay out of trouble, understand the basics of trademark law, which prevents a business from using a name that is likely to be confused with the name of a competing business. If you choose a business name that's too similar to a competitor's name, you might find yourself accused of violating the competitor's legal rights (called "trademark infringement" or "unfair competition"), and you could be forced to change your business name and possibly pay money damages.
There's only one way to ensure that you won't violate someone else's trademark rights: Do some digging to find out whether another business is already using a name that's identical or similar to the one you want to use.
I have filed taxes with the IRS as an artist using my own name as my business name since 1998. When I branched out from fine art to create upcycled crafts in 2011, I decided to use a fictitious name for the craft arm of my creative endeavors to mark a clear separation from my fine art. Odd Bird Studio has since evolved to encompass all of my work. (Oh dear! A new business card is in order.)
My very first blog post touched on much of this, but to recap, my due diligence went something like this. For every name I brainstormed - pages upon pages of unique names and variations centered on specific birds, birds in general, and bird nests - I first searched Google for its presence on the web. Most of the names on my exhaustive lists were already taken. When I got to Odd Bird Studio, there was not a single search engine result for that specific phrase. Yippee! I then checked Etsy and Facebook for Odd Bird Studio user names. Again, nothing. I searched for URL availability. At the time, not a single Odd Bird Studio URL in use. I searched the Federal trademark database and my state's fictitious name database for use of Odd Bird Studio. No hits. Finally, I made sure oddbirdstudio@gmail.com was available.
I then registered Odd Bird Studio as my business name with the state of Ohio. I purchased oddbirdstudio.com, .net, and .org. I couldn't afford to purchase any more of them or I would have. I set up Etsy, Facebook, a blog, and gmail accounts with the user name Odd Bird Studio. Now that I've moved, I cancelled my registration with the state of Ohio and am in the process of registering Odd Bird Studio with the Pennsylvania Department of State (after, of course, making sure the name isn't already registered in PA).
It amuses me that every time I think others are just like me, like thinking having a unique name for your creative business is a no-brainer, I am wrong. And every time I think my take on something is different from those around me, I find more similarities and sympathetic experiences than I ever imagined.
United States Resources for
Fictitious Name / Trade Name / Business Name / Doing Business As (DBA)
Fictitious Name / Trade Name / Business Name / Doing Business As (DBA)
NOLO
Federal Trademark Database
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