Can two businesses have the same name?

Choosing a business name is one of the most important decisions a business owner will make. The name of your business is often the first impression a customer will form of your brand. It can also affect your sales, reputation, and even its chance for success. When selecting a business name, it’s important to decide upon a name that’s easy to remember, descriptive of the business, and attention drawing. 

But what if you find out that another business in a different state has the same or similar name? Should you restart the process of finding a name? 

This article explores your options in this scenario.

Can I use a business name if it exists in another state?

All may not be lost. You can often use the same business name in your own state or another state, if it is not in the state where the business name is filed, and it doesn’t violate trademark rules. This is common practice for smaller local businesses. 

However, this depends on what you mean by “business name”. Is it a legal name or a “doing business as” (DBA) name? Trademarks may also come into play.

If you plan to expand or operate your business outside your home state or nationwide, you will also need to be cognizant of any other business using the same or similar name. 

Understanding legal names vs. a DBA name

Your legal business name is the official name your business operates under. How it's determined depends on your business structure:

• LLCs and corporations: The legal name for an LLC or corporation is established when you file your formation documents with the state (Articles of Organization for LLCs; Articles of Incorporation for corporations). This name must meet your state's business naming requirements.
• Sole proprietorships and general partnerships: Since these don't require state registration, the legal name is simply the name(s) of the owner(s).

A DBA, by contrast, is any name you use to conduct business that differs from your legal name. A DBA name is also called an assumed name, trade name or fictitious business name.

For example, Alex Johnson operates a sole proprietorship catering business but instead of using their own name, they call it "Plate & Serve". That business name is considered a DBA and may need to be registered with the appropriate local authorities. (More on this later.)

DBA names are generally not protected the way legal names are. When you register a legal business name (such as "Apex Solutions LLC") with a state, that state bars other businesses from registering under the same name. Many states will also reject names that are deceptively similar to one already on record.

A DBA doesn't come with that protection. In most states, another business can use the same DBA name as you.

If you want to protect your DBA name, you may be able to file for protection under the trademark and tradename laws.

Rules for naming your LLC or corporation

When choosing a legal name for your LLC or corporation, you must follow your state's naming rules. While requirements vary by state, here are the general rules.

The name must be distinguishable. Your business name cannot be substantially similar to any name already on record in that state, whether that business is incorporated there or registered to do business there.

If the name is too similar to an existing one or already taken, the state will reject your formation documents. Note that simply changing your entity identifier (for example, swapping "Corporation" for "Inc.") is not enough to make a name distinguishable.

The name must identify your business type. Most states require that your business name include a specific designator reflecting your entity type. For example:

• Corporations: "Corporation", "Incorporated", "Corp.", or "Inc."
• LLCs: "Limited Liability Company" or "LLC"
• Limited partnerships: "Limited Partnership" or "LP"
• Limited liability partnerships: "Limited Liability Partnership" or "LLP"

Certain words are prohibited or restricted. Many states ban specific words from business names for two main reasons: to prevent inappropriate names, and to protect the public from being misled. For example, a state may prohibit the word "Insurance" without prior approval from the state's insurance licensing board.

What is a trademark?

A trademark is a word, symbol, phrase, or design used to identify a manufacturer's or seller’s products and to distinguish them from the products of others. A service mark is the same as a trademark except it identifies and distinguishes services. (The terms “trademark” and “mark” are frequently used to include trademarks and service marks.)

A business’s legal name (such as “Innovation Software LLC” or “Green Building, Inc.”) is not necessarily a trademark. A trademark identifies a business entity’s goods or services. A legal name identifies the business itself.

However, a legal name may be a trademark if it is used in commerce to identify the business’s products or services.

How trademarks may impact your use of a name

Trademarked names are registered with the U.S. Patent and Trademark Office (USPTO) and are protected nationally. If a business name is already trademarked, you are prohibited from using it even if the company operates in a different state from yours.

Trademark issues can be complex. In trademark infringement cases, courts look at whether consumers would be confused by two businesses that operate in the same industry. Essentially, if your name is likely to cause consumer confusion because it’s the same or like another business name, then you cannot use that name.

What if you want to trademark your name?

Trademark rights are acquired in two ways. One is by being the first to use the mark in commerce. The other is to apply for federal or state trademark registration.

Federal registration means that you file an application with the USPTO. A trademark provides certain benefits beyond those provided by common law, such as creating a nationwide presumption that the trademark is valid and giving you the right to use the trademark nationwide. It also enables you to bring a trademark infringement suit to a federal court and allows the recovery of significant damages and costs.

Once a trademark is registered, certain filings are required to maintain registration, including renewals and declarations that the mark is still being used. Trademark protection can also be lost if the mark is abandoned, improperly licensed, improperly assigned, or becomes generic.

A trusted adviser familiar with trademark law can help you if you decide to take steps to protect your company’s trademark rights.

How to see if a business name is taken

There are several ways to research the availability of a business name.

1. Conduct a general online search. Search your proposed name along with your location (for example, "Johnson Catering New York") to see if another business is already using the name, even if it isn't formally registered.
2. Conduct a trademark search. The USPTO's trademark search tool is a quick and easy way to do this. Don’t overlook this step because a failure to check existing trademarks could result in an infringement lawsuit.
3. Conduct a legal entity name search via the Office of the Secretary of State or Corporations Division website in the state where you plan to form your business.
4. Check domain name availability. Use lookup.icann.org to see whether a domain name is taken.
5. Check social media handles. Search your proposed name across major platforms (such as Instagram, Facebook, TikTok, Bluesky, and X) to see whether the handle is already in use.

Keep in mind, a name check simply tells you that the name is available at the moment you perform the check. It does not “hold” the name for you or guarantee that you’ll have it. If there will be a period before you are ready to submit your incorporation or formation documents, consider taking advantage of a name reservation.

Registering your business name

Legal business names are registered when you successfully file with the state. The state will search its records to confirm that your chosen name is available. If the name is already taken, the formation documents will not be filed.

DBA names require you to complete and file the appropriate DBA forms and pay a filing fee. Depending on the state, you may be able to file with a local or county clerk's office, a state agency, or both.

Not ready to form your LLC or corporation yet? If you'd like to secure your business name before you're ready to file, consider filing a name reservation. This prevents another company from registering the same name in that state for a set period of time.

Learn more about reserving a business name: State Name Reservation.