Depending on the extent of its marketing and advertising, even a relatively young business can have substantial value or good will in its name. Consider the loss of business recognition and value your company would suffer if it were forced to change its name, or if a competitor were allowed to use the same or a substantially similar name.

The fact your corporate or entity name is registered with the Secretary of State provides little protection. This is because the right to exclusive use of a particular name depends on the date of first use-not the date of registration. If a small, sole proprietorship can prove first use of a business name, its rights are superior, for example, to those of a corporation that later uses and registers the name with the Secretary of State.

For this reason, it is important to maintain records that document the date your business first began using its name. These records may include copies of dated letters on business letterhead, dated marketing and advertising materials, etc.

Another aspect of protecting a business name is to be alert for potential infringement of your business name by others. Generally, the more successful your business, the greater the likelihood another business may copy your name. Startup companies will sometimes choose a name similar to a successful competitor in the hope that the public will confuse the two.

In addition to the potential lost profits that may result from the infringement, there are significant legal reasons for monitoring one's business name. The law does not reward those who sit on their rights. If a business allows another business to use the same or a substantially similar name for a sufficient period of time, the courts may refuse to enjoin the junior user's use of the name.

It is, therefore, important to monitor the marketplace for potential infringement. This can be accomplished as simply as reviewing the telephone books on a periodic basis for the areas in which your company does business and advising your workforce to inform management of potential infringers. Some businesses offer employees a reward for information concerning potential infringement.

Your workforce can also provide information that is useful if an infringer is discovered. The most significant issue in proving an infringement case is whether there is a likelihood that the public will be confused. The best evidence of the likelihood of confusion is actual confusion. If your workforce receives telephone calls for the infringer, they should be advised to make a written note of the caller's name, address, and phone number. These callers are key witnesses regarding the issue of public confusion. The mere fact they called your business trying to reach the infringing business is evidence of confusion.

Once an infringement is discovered, an investigation must be undertaken promptly to determine which business is the senior user of the name. If it isdetermined that your business has the senior right, the next step is a written request to the junior user to cease and desist from continued use of the infringing name.

If this request is ignored, infringement litigation may be necessary.