What do I need to do to start a business?

To start a compliant business, there are a number of things you must do. You need a company name that does not infringe another person or company's trademark. You need to form a business organization to provide limited liability to your company. You need separate bank accounts for your business affairs to maintain limited liability. You need to create an operating agreement or bylaws to provide the ground-rules for the day-to-day operation of your business.


You need to get a tax identification number from the federal government. You need to get set up with an accountant. You need to get any applicable licenses, depending on the type of business you have. You need to determine whether you will have employees, independent contractors or franchisees. If you have franchisees, you may need to file an irrevocable consent to service of process with the secretary of state, depending on the state in which you are located.


On an ongoing basis, you may need to develop confidentiality or non-disclosure agreements for employees, independent contractors, customers or suppliers. You may need employment contracts governing the creation of intellectual property by company employees. You need licensing agreements for the license or transfer of any intellectual property.


You need to file biennial reports to avoid dissolution of your business. You need to file taxes, sometimes quarterly.


Obviously, it all starts with a good idea for a product or service your company will provide. You need a website, and you need a marketing plan. As far as advertising; just do not lie. If you claim something on your website or in your company brochures or catalogs, be able to prove it. If you cannot prove a claim or assertion, you probably should not be saying it.


Every industry is different. What is required for one company in one industry in one state will be different from what is required of another company in another industry in another state. There are a lot of requirements in getting a business up and running, but it sounds worse than it is.

Common misconceptions about trademark registrations.

This article addresses some misconceptions about federal trademark registrations. Several have already been discussed, such as the juxtaposition of "TM" with your unregistered mark, and the conduct of a proper trademark search. The article focuses on start-ups, but even if you are an established business, it may not be too late to do these things with your company.

Collegiate conference realignment and trademark squatters.

In the past few years, collegiate conference realignment has been driven by television and marketing revenue from football. Conferences have been trying to expand their "footprint" in order to leverage the largest number of cable subscribers or network television viewers. When a conference has its own cable network, like the Big Ten or Southeastern Conference (SEC), an expanded footprint is more important than when a conference has a TV contract with network channels.

In the summer of 2010, college football was at a crossroads. The Universities of Nebraska and Colorado left the Big 12 Conference for the Big Ten and Pac-12 Conferences, respectively. Although some schools were secure with their conference affiliation, many "big name" schools were left wondering where they would end up. Similar events occurred in the fall of 2011, when the University of Missouri and Texas A&M University left the Big 12 for the SEC. Other big name schools changed conference affiliation as well, and the ripple effects are still being felt today. There is no indication that conference realignment is over, despite several conferences' members agreeing to grant their media rights to the conference for a specified period of time.

Of the schools and conferences that were unsure where they would end up as a result of realignment, some filed intent-to-use applications over the past decade or so, in order to reserve alternate or new conference names in the event of a conference's dissolution or addition of members. For instance, from 1997 to 2009, the Big 12 filed intent-to-use applications three separate times for the "Big 14," in anticipation of the conference membership expanding to 14 schools. All three were abandoned, the last of which on September 24, 2012.

The most recent wave of conference realignment resulted in seven Catholic schools leaving the current Big East Conference to form a new Big East. The remaining members formed the American Athletic Conference, and added a few other schools. The new conference filed intent-to-use applications for a variety of names that were under consideration before it made its final selection. This saved time when the conference made its selection and used the name in commerce, by making full trademark registration easier. For the names the conference did not use (e.g., All America Conference, America 12 Conference), it will simply abandon the applications.

When a few conferences almost "imploded" in 2010, which would have left numerous schools without a conference affiliation, a number of individuals tried to anticipate new conference names by filing intent-to-use applications on nonexistent conferences with the hope of later profiting from them, much like cybersquatters do. For instance, one individual filed an application in June 2010 for the "Super16 Conference." This guy was apparently unaware that he would need to use the name in commerce to ultimately secure a federal registration. Eventually, his intent-to-use application would lapse, because he ostensibly had no connection to the hypothetical conference that would want to use the name.

Plus, the hypothetical conference could also have just selected a different name. Or, it could have have used the "Super16" name and simply proven that the previous filer had no bona fide intent to use the mark in commerce.

All about trademarks.

I have written about trademarks in a number of previous posts. For reference, here they are:

- Introduction to trademarks.
- Introduction to trademarks, part 2.
- On deceptive and deceptively misdescriptive trade names.
- Deceptive and deceptively misdescriptive marks clarified.
- More clarification on deceptive and deceptively misdescriptive trademarks.
- On primarily geographically misdescriptive trade names.
- Secondary meaning in trademarks.
- The conflict between U.S. trademark law and NCAA rules: The "Johnny Football" scenario.
- On trademark infringement.
- The importance of conducting trademark searches.
- Surprisingly, the rapper "Pope Emeritus" has virtually no chance in a trademark infringement suit against Benedict XVI.
- The "Redskins" mark should not be entitled to federal trademark protection.
- More on "Redskins" trademark cancellation proceeding.
- Do you need copyright, patent or trademark protection?
- Is your company's trade name federally registered by someone else?
- A good IP Awareness Assessment for businesses and entrepreneurs.
- Trademark FAQs (from USPTO).
- Trademarks vs. Antitrust.
- A trademark dispute in Cornhusker country.

The USPTO also has a good link for trademark basics, which can be found here.

Is your company's trade name federally registered by someone else?

If you work in a company that has not registered its trade name with the United States Patent and Trademark Office, has another business already registered that name? You can check here.

If another company has registered the same trade name, you may still be able to register as well, as long as the other business or businesses provide dissimilar goods or services from yours. If there is not another company with the same trade name, it does not automatically guarantee you can use the name throughout the U.S. There may be pockets of the country where other unregistered businesses have common law trademark rights. This is where more searching is required.

This is simply a starting point for determining whether any future company growth will be stunted by a trademark infringement suit.

The importance of conducting trademark searches.

In starting a company, it is imperative to have a good business name. It is common to think that yours is an original name. But assumed originality should not take the place of due diligence. You should always search to determine whether another company uses the same name. There are a lot of people in the world, and all of them can file for trademark registration in the U.S. There is a reasonable chance that a seemingly original business name is in fact not that original.

Not every company has the same goals. Some have no limitations. Accordingly, they seek to become preeminent in their industry. Some have more modest goals and never intend to extend beyond a small geographic area. If you do not conduct a trademark search, you may be limiting how successful your business can become.

If your company shares a name with a federally registered mark, it depends on the competitive proximity of the products and services, among other things, to determine whether you infringe on their mark. If the competitive proximity of the products is close, the markholder will almost certainly sue you should your company become very successful while using their mark. If the competitive proximity of the products is not close, they may still sue you. The more famous and successful your company becomes using another company's mark, the more likely it is you will get sued by that company for trademark infringement. Ultimately, you may be required to change the company's name. All of the goodwill you built among customers and the community could be gone.

Trademark law is not always intuitive, either. There are circumstances when you would be prohibited from using your own last name as the name of your business. If your last name is already in a federally registered mark in a similar industry as your business, you probably cannot use it. For instance, I would likely be prohibited from using my last name if I were to start a company that sold athletic-wear, because "Russell Athletic" is used in three different federal trademark registrations.

People assume their name is their property. They do not think that another company could prohibit the use of their own name in a company name. But for this and other reasons, it is important to conduct due diligence and search for other marks.