Salton Sea by Oliver Dodd – CC BY SA

When you’re thinking about naming your company, what’s on your Must-Have list?

1. Common English word.
2. Memorable.
3. Connected to your brand promise, differentiator or offering.
4. Easy to pronounce and spell.
5. Short.
6. Available for trademark.

Seems reasonable—until you start checking to see which of your favorite name ideas are available to trademark. Unless you’ve tried naming a business in the last 5-10 years, you may not realize how barren the trademark landscape is. To put it simply, short, positive, common English names are largely no longer available in most trademark classes.

Last year, the Harvard Law Review published a study quantifying what we in the naming business have observed intuitively. In their article, “Are We Running Out of Trademarks?” the authors analyzed a number of factors and concluded: Yes, word-mark depletion is real, and it’s severe.

The Most Common, Positive Single Words Have Been Trademarked

Let’s look at the “common English word” criteria from the wish list above. To determine whether a word is common, the authors of the study looked at how many of the 1,000 most frequently used English words were registered as single-word trademarks. The result? 813, or more than 80%.

What about the other 187 words, you ask? Why not use those? Because you probably wouldn’t want them. They’re words like, “disease,” “killed,” “died,” “despite,” “drug,” “loss,” “older,” and so on.

When the frequently used word list is expanded to 86,408, the authors found that 74% of them had been claimed as a single-word trademark. In other words, when we speak conversational English, we’re saying someone’s trademark almost 3/4 of the time.

Who Will Find It Most Difficult to Register a Single-Word Trademark?

What about single-word trademarks within a particular class? US trademark law allows companies to claim identical marks if their goods and services are distinctly different. That’s why ACE hardware store and ACE bandages can co-exist as registered trademarks. When the authors analyzed single-word marks within International Classes, they found some of the busiest classes using more than half of the most frequently used 86,408 words.

Trademarks are Getting Longer

As we’ve seen, single-word common English trademarks are in short supply. To find trademark availability, companies are filing multi-syllabic and/or multi-word marks.

The above graph shows us that today, most filings that successfully register consist of more than one word. Whether one word or two, trademarked names are also trending toward more syllables—again, because most positive, common English words with fewer syllables are simply no longer available. In the graph below we see that most successfully registered names have between four and five syllables.

What accounts for the downward trend in the mean? As Herman Cain famously said, “I don’t have facts to back this up,” but the trend line seems to start about the time that neologisms were becoming popular. When you can make up any word, it can be short and monosyllabic. I’m guessing that a flood of short neologisms has had a significant effect on the mean.

We see the same downward trend in character count. But even so, the mean is a whopping 14 characters for successfully registered names.

It’s Even Worse than it Looks

I wanted to give you a broad-brush view of today’s trademark situation without getting too deep into the weeds. Suffice it to say that not only are trademarks being used up, the USPTO has become more stringent in denying marks that they deem likely to cause confusion with an existing registered name. It’s not enough to search an International Class to see if the name you want to use has been taken. You also need to consider the relatedness of the goods and services. Recently, the Trademark Trial and Appeal Board (TTAB) ruled that a cigar can’t have the same name as a wine, because they are often used together.

And it’s always been true that trademark examiners will give the boot to names that are similar but not identical. As the authors of the study note:

“… a registration for BLUE in Class 25, for apparel, would likely disallow another entity from registering in that class BLU, BLEU, BLUE MAN, and quite possibly even similar sounding marks such as BLOW as well.”

By now you may be thinking that neologisms are the way to go. But that would be a mistake. Launching with a word that means nothing to your audience will hobble your business. Your name would be easily ignored and less likely to be remembered because it carries no meaning and triggers no emotion. (See Brain Rules for Naming — #2)

On top of all the branding issues, there’s no guarantee that even a neologism will be available to trademark. The study’s authors write:

“Firms that choose neologisms generally prefer short, easily pronounceable, familiar-sounding, and reasonably euphonious terms. Our data indicate that this limited supply of new words is itself being depleted.”

Naming Strategies for Finding Available Trademarks

What’s a brander to do? You need a name. If you go to market without a trademark, you could open yourself up to myriad headaches down the road. Not only could you be infringing on someone else’s trademark, but another company could come along and register your name. If you wanted to fight for your common law rights to the name, it could cost tens of thousands of dollars in legal fees.

So be strategic about naming your business. Go into it with your eyes and mind wide open. Here are some tips.

1. Understand that this is a business decision, not an emotional one. Unlike naming a child or pet—a completely emotional and subjective process—you’re creating a business asset. Stay objective. The most important factor in your brand name is that it communicate something appealing about your business. You don’t need to love it. (Although once you see how an effective brand name starts a story and creates opportunities, you may grow to love it!)
2. Manage expectations. Help your team understand the challenging trademark landscape. Depending on your goods and services, you will probably not find an available name that hits every single criteria on their wish list. Explain #1 above.
3. Be different. No, really. Be different. If your brand can differentiate itself in a way that no other company in your industry has, you can mine creative areas that nobody has been in before. Remember that personality can be a differentiator. Imagine the naming potential if you position your accounting company as the advocate who fiercely and relentlessly fights to save your clients money on taxes. You’d be naming in a field of mostly boring brand names. Your bold personality would stand out from your competition, and you’d have more opportunity to find an available name.
4. Don’t set arbitrary goalposts. Pollywog was once contacted by an entrepreneur who wanted a name using an English word with five or fewer characters. Sure, there may be a few short names that haven’t been taken in his business space. But they probably wouldn’t have connected to anything appealing about his brand, and he probably wouldn’t have liked them. When it comes to the effectiveness of a brand name, character count is a fairly minor consideration. We put a lot more weight on how well a name connects to a brand promise or differentiator. Be open to longer names, because that’s where trademark availability is these days.
5. Stretch creatively. Let’s just say it: The name you’d expect for any given new product is already gone. That’s why you need to come up with names that are completely unexpected, yet still appropriate. This requires creative leaps—thinking about your brand in many different ways. Explore, then explore some more. See our Five Essential Tools for Brainstorming Business Name Ideas.
6. Work with an entrepreneurial trademark attorney. A good intellectual property attorney should do more than just protect you from risk. They should be your partner in trying to secure the name you want by being strategic in how they write the application.