The Ultimate Buzzkill? Maybe. But Ignore It at Your Own Risk.
Let’s talk about the least sexy (but most essential) condition of naming: legal confidence. Because nothing ends a promising name faster than a cease-and-desist letter.
This is part six in our series on naming conditions. We’ve covered strategic fit, communicative clarity, linguistic confidence, and digital readiness. But none of that matters if you don’t have the freedom to operate. That’s what legal confidence is really about.
And yet, it’s the part most often ignored.
Enthusiasm is Not a Legal Strategy
Creative agencies get swept up in positioning concepts. Entrepreneurs fall in love with names they 'just feel good about'. Corporate teams rush to brand launches with zero legal alignment.
It’s understandable. Naming doesn’t happen every day. And when it does, few are fully aware of the legal complexity behind it.
But the reality is this: thousands of trademarks are registered every single day. Millions already exist. And in some markets (like the US or UK), even use without registration can offer legal protection.
Which means that name you love might already belong to someone else. And if you use it, you might have to change it, at best. At worst, you’ll owe money, waste time, lose momentum, and start again from scratch.
Philips,for example, once had to pay out millions after introducing a product under a name they couldn’t defend. It was cheaper to settle than to recall everything. A costly lesson.
Trademark 101: What It’s Actually About
The core question is: can the name be protected? And protection isn’t about ownership in the abstract. It’s about avoiding confusion in the market.
Trademark law, at its essence, is designed to protect consumers from mistaking one brand for another. So when a name is too similar to an existing trademark in a relevant class, or when it lacks sufficient distinctiveness, the risk of confusion becomes too high. That’s where most conflicts (and rejections) arise.
Different markets draw the line in different places. The EU and China have recently grown more strict about refusing names that don’t meet the 'distinctive character' test. The U.S., while more lenient with suggestive marks, still rejects anything likely to cause confusion or viewed as merely descriptive.
So what do you want in a name? Not just availability, but legal defensibility. That means:
- It stands apart from competitors.
- It doesn't describe your offering too literally.
- It's not already in use in your class, region, or category.
A great name doesn’t just sound good. It holds up when the lawyers show up.
When and How to Check
Early. Before you fall in love. Before you present to the board. Before you start printing anything.
A topline trademark screening — checking for identical or near-identical names in relevant classes and key markets—should be built into the early naming phase. It’s fast, relatively affordable, and helps you avoid falling for a name that’s dead on arrival.
And no, a clean URL or low digital footprint doesn’t mean a name is legally available. Many trademarks are registered years before they appear visibly online. Trademark databases operate differently from search engines, and the absence of noise doesn’t mean the absence of risk.
Once you’ve narrowed your shortlist, it’s time for the in-depth similarity checks. This phase requires looking beyond identical matches to identify phonetic, conceptual, or visual similarities that could lead to legal objections. This is where the real legal strategy comes in: balancing brand ambition with competitive landscape and jurisdictional nuance.
To that end an essential piece of advice: work with a specialist. Not just any trademark attorney. A partner who understands naming, branding, and the practical implications of legal feedback. Someone who doesn’t just drop a 12-page PDF full of 'grey zones', but helps you read the room and make a decision.
The truth is, most trademark attorneys are cautious by design. That’s their job. Your job is to make informed, strategic choices based on that input. And you can only do that if your legal partner speaks your language, and understands your business goals.
So don’t cut corners here. Pick someone good. Someone experienced. Someone who won’t leave you stranded in a swamp of maybe.
Not All Names Need a Fortress
Here’s where nuance comes in.
Not every name needs ironclad protection. A sub-brand or descriptive product name that lives under a strong master brand? Lower risk, more options.
Startups in early stages? You might skip a full legal review until you’re closer to market. Risk is still relatively low, and flexibility is built into your model. As long as you don't forget about it when scaling.
But if you’re naming a company, a hero product, or anything tied to serious investmentor long-term equity? Legal checks aren’t optional. They're part of the business case.
Legal Confidence ≠ Zero Risk
Sometimes, you’ll see the risk and still take it. That’s a strategic call.
But legal confidence means you’re aware of the risk, not blindsided by it six months later. It means you’ve made the decision eyes open, not with fingers crossed. Because let’s be honest: nothing kills creative momentum faster than having to rename something already out in the world.
So don’t treat legal as an afterthought. Treat it as a guardrail. A filter. A sanity check. Something that helps you pick names you can actually build on. It might be the ultimate buzzkill, but it’s also the thing that lets you scale with confidence.
Next: The Final Recommendation: It's All About Balancing the Conditions
In the final part of this series, we’ll pull everything together — strategy, communication, linguistics, digital, and legal — to show how they balance, reinforce, and sometimes challenge each other.
Because a great name isn’t just strong in one area. It’s balanced across all of them.
Want help integrating legal thinking into your naming process without slowing it down?
Joachim ter Haar
Managing Partner
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