The Pitfalls of Using Your Name as Your Company’s Name

Many construction companies are named after their founder, like “Smith Construction”, “Larry’s Plumbing”, and “Johnson Electric”. But companies that make use of surnames may have problems obtaining exclusive trademark rights in those names -- rights that the company could enforce against competitors that adopt confusingly similar names. This is a brief explanation of why you may want to rethink using your name as your company’s name.

A company can obtain enforceable trademark rights without formally registering its trademark, so long as the company makes commercial, public use of the trademark. That is, a company must use the word or phrase to identify and distinguish the goods or services that it sells to the public. Obtaining trademark rights means that a company has the right to prevent others from making commercial use of the same or substantially similar trademark for the same or similar goods or services, in manner that is likely to cause public confusion.

Some words or phrases can never be trademarked because they are generic – like “construction” and “plumbing” – yet other words may become a trademark, but only after very long, substantial and continuous use that makes the words immediately distinguishable among the public. One example of words that are difficult to trademark are last names. Thus, company names that the public would commonly recognize as primarily a surname, such as “Thompson Construction”, cannot be protected unless the name has been used for so long, so pervasively, and so exclusively that the name achieves a unique sense of recognition among the general public (in legal circles, this is called "secondary meaning"). For example, there is no question that “McDonald’s” and “Nordstrom” are surnames that have achieved this heightened recognition, so they are now protectable trademarks (that is, even if your last name is “McDonald” – you could not open any food-related business and call it “McDonald’s”).

The best advice for obtaining trademark rights is to steer away from using a last name, or any word that could look like a last name. For example, you could use your initials (e.g., “JSG Construction”), or use words that are not obvious surnames (e.g., “Permacore Contractors” and “Hayview Construction”), all of which are much more likely to achieve trademark protection, assuming, of course, that another company is not already using those names.