Today’s guest blogger is James J. Eischen, Jr. of Eischen Law Group, APLC.
So you want to name your medical or dental practice something different than “Dr. Arnold Palmer, A Tasteful General Practice?”
A quick story: a business partner and I decided to create a private medical business to help private fee physicians and patients better connect, and to deliver basic private medical practice administrative services. We wanted to use a business name that suggests “connection” but we did not want to use a descriptive name or a name too similar to competitors (like “ConnectMD”). We sat in a crowded bar during a loud happy hour in San Diego with smart phones in hand as we did rapid internet searches for each clever name we fell in love with, only to discover again and again that the name we loved (or something very close) was already in use and therefore unavailable. I discovered that virtually every cool name you can think of in Latin or Greek is already snapped up by the pharmaceutical industry or other health care businesses. Frustrated, we decided to plow the fields of another language—Punjabi (my girlfriend’s parents are from Punjab). I searched Punjabi for a name that referred to “connection” but also had something of a lyrical feel. I struck out on my own but then enlisted the help of my girlfriend’s very literate and well-educated father via a quick email. He rapidly suggested “Jorna.” Interesting. We searched the internet and found nothing of note. We then searched the California business portal for corporations and limited partnerships/LLCs—no Jorna. Success. So we formed a California corporation called “JornaSolutions” as an initial holding company, and then we registered every version of “Jorna” we intend to use as domain names on the Internet. Time will tell if that name connects to a successful business. I am guessing it is a better name than “Doctor Helpers” or “Find U Patients.”
What makes a good business name?
“Xerox” and “Kleenex” are routinely touted as amazing business names. Why? Over time both evolved from obscure names lacking any discernable meaning to nearly universally recognized words. If I ask someone for a “Kleenex” I’m handed a disposable tissue paper product without question. I tell someone I am “Xeroxing” a file they understand am copying the file. If I tell you I “FedEx’d” a letter after I stopped off for lunch at KFC, you’d have no problem knowing I sent a letter via overnight delivery after eating some version of fried (or grilled) chicken. “Facebook” easily becomes the “F” logo in a blue rectangle on seemingly every electronic media offering on the Internet without triggering confusion (not a grade). And now “facebooked” is a verb, right? On the other hand, if I started a company selling paper products called “Paper” your common sense informs you that the company name will never be truly valuable or protectable. And I probably can’t stop other companies from referring to “paper” by calling my company “Paper.”
Medical and dental practices are more frequently utilizing fictitious business name to differentiate themselves from their competitors. “Dr. [fill in the blank]” is what is called “descriptive” and descriptive is a bad word when it comes to naming a business. “Ed’s Brickyard” or “Susie’s Card Shop” are also descriptive. There is no confusion, but, neither is there anything sufficiently unique such that over time a growing customer base renders the name valuable and protectable from use by competitors. Any “Ed” could open a competitive brickyard and any “Susie” could start their own card shop. Ed and Susie won’t stop others from using “brickyard” or “card” in their business names. And, when Ed sells to Bob, then what? A whole new name: Bob’s Brickyard. And a probable lack of ongoing name value.
When business names are too descriptive, the names are too easily copied with slight variation by competitors and thus lose value. While federal (and often state) laws generally prohibit the use of business trade names that tend to cause customer confusion, using business names that are too descriptive makes it too easy for a competitor to use similar name. Names that are “suggestive” are more valuable than “descriptive” but in the end the real winners of the business name game are neither descriptive nor suggestive but instead become a new word: there were no references in any dictionary to a Xerox, a FedEx, a KFC, or a Kleenex before those companies were formed/named.
Ok, so how should a dental or medical practice decide on a fictitious business name? And, how is that name protected? Here are some basic guidelines.
First, try to creatively discover a name or reference that at most merely suggests or indirectly refers to your practice’s focus. Avoid descriptive. Perhaps your dental practice is focusing on total health, or is limited to orthodontia—the name should at least indirectly help and for sure not hinder a person’s comprehension. You are an eye surgeon—the practice name might connect indirectly to light or vision. Or it may have very little to do with it. As you come up with potential practice names, search the Internet for that name and see if there are already version of that name in use. Obviously it is safer to use a name that seems to have no current usage, and lacks a website with the name integrated or utilized. Best to be unique. For example, I was sitting at a Padre baseball game in San Diego with my oldest son and saw a billboard sign in left field with a business name/logo referring to a meat company called “35 Degrees” (my son knew the family who started it from high school). We both thought, huh, wonder why 35 degrees (compared to say 34 or 36)? Bottom line, the name stuck in my head without being so descriptive a competitor could easily copy it. The concept of heat applied to meat makes sense. That’s a pretty good business name.
Second, if you are a medical or dental practice, ensure that the proposed fictitious business name complies with your state’s laws. This is very important. State agencies and/or medical or dental boards regulate what types of fictitious business names can be utilized by practices, and may bar any use of a fictitious practice name prior to formal review/approval. The practice typically must secure fictitious practice name approval before utilizing the fictitious practice name. Be sure to check with and comply with applicable state laws and professional regulations.
Third, once you have a fictitious business name approved by your applicable regulatory board, can you trade mark it? Not automatically. Normally a federal trade mark requires prior use across state lines. A state trade mark may be available for a trade name use within a specific state. And if the trade name you want to use varies from the actual business owner name (example: Dr. Howard Molar wanting to do business as “The Smile Factory” or “White Flash”) you will likely need to file what is called a “fictitious name statement” with your local county or state agency (depending on the rules in your jurisdiction) so that potential or actual customers can search public records to know who or what actually owns “Smile Factory” or “White Flash.”
Fourth, register website names with your business name so that someone cannot easily utilize your business name (or something close to it) in a website that potentially misdirects customers away from your business. This is hugely important. Otherwise, when people search for your business or practice they will be misdirected.
Naming a business is much like naming a child: it is rare to see a baby with sufficient insight into personality to place just the right name on that child. Or, if you are my girlfriend, you know that your beautiful fashionista daughter should be called “Bella” and your amazingly smart-minded daughter should be called “Sophia.” Such insight is rare. Best to be creative, be ready to search internet databases, and with effort and creativity you will hopefully invent a memorable name of potential value.
James J. Eischen, Jr., Esq.
Eischen Law Group, APLC
2187 San Elijo Ave., Ste. C
Cardiff by the Sea, CA 92007