Trademark, Language Issues, and Making your Product Searchable

Written by Jerry Stern
Webmaster, Startupware.com

OK, it’s pretty obvious, right? Name your program, memorably, so that people will have an idea of what it does, but with a name that you can use. Right? Well, that’s not easy. As webmaster on two download sites, I see thousands of new product names, and some of them are, well, illegal. Others are meaningless, or dated, and others will never, ever, be found in a search. Let’s cover each of those areas.

Company Names

Your company name needs to be unique, generic enough to allow future diversification, memorable, and have a domain name available to match it, preferably with a .com top-level URL. Don’t skip searching to see if your company name is already in use. Check all the search engines, check local government listings, check telephone book listings. Here in the USA, your company name must be unique at the state level. For a software product, you’d like it to be unique world-wide. Surprises get expensive later on–find out in advance if someone else is already using the company name that you want.

Keep the company name short and generic, and by generic, I mean do not tie the company name down to whatever your current product idea might be. Products have a lifecycle. Products go away. You will want to add new products to your company later on and not have to rename your company or start a new one in order to make everything fit into one organization. By generic, I specifically do not mean boring and unsearchable. Ideally the company name that you plan to use can be typed into a search engine, in quotes so that the results are for only the full name, and have no results whatsoever. None. That’s not easy, and that’s why you see so many new startup companies using product names and company names that are basically baby babble; anything easy to pronounce, totally meaningless, and under ten characters, has become a typical company name, so long as the .com domain that matches it is available. You don’t have to go that far, but do be creative.

Product names

Now for a product name, you don’t need to be so generic. Short is still good, especially if you know you’re going to have a big marketing budget to explain just what kind of what-zit you are selling. We don’t all have the luxury of an unlimited marketing budget, so having a short but descriptive name is what you’re looking for. It’s best if it is a balance between highly descriptive and completely unique among searches, so that anyone searching for your product will find your website immediately. Again, that’s not easy. Try some web searches, and see whether or not your proposed product name brings up an awful lot of unrelated items. If your proposed product name brings up hundreds of pages of search results, name it something else.

While you’re searching, look for potential competitors. Make sure that what you want to use as the product name cannot be confused with other product names already in use; check the US Patent and Trademark Office’s Trademark Database, at www.uspto.gov. There are two reasons for that. First, if your product name matches some other products, you will get tech support calls and e-mails for that product, and they’ll get yours. You’ll have refunds to issue for the same reason. Confusion is not good. Second, even if a similar trademark is in an unrelated area, and therefore OK for use as a software name, prior use in some other area could lead to a dispute for the .com domain.

Error 1: Not Researching

There are good examples of trademarks to learn from, and bad ones. Exxon is a good example; in 1972, they were known as, in various subsidiaries and different geographic regions, as Standard Oil, generally abbreviated and trademarked as Esso, as well as Humble and Enco. They started a search for a replacement name, and considered several. Using Enco for the entire conglomerate wouldn’t work, due to a Japanese-language problem, which sounded like ‘stalled car’. Exon was similar to the other trademarks, but was also the name of the governor of Nebraska. Exxon was tested, found to not be in-use or have language problems, and was adopted January 1st, 1973. The old names are still in-use, on a very small scale in limited markets, in order to prevent their use by other companies as ‘abandoned’ trademarks.

Microsoft has a history of not following Exxon’s example. The “start screen” of Windows 8, currently described by Microsoft as the “modern desktop”, was formerly named ‘Metro’ during development, but that trademark belongs to a German conglomerate, Metro Group, who runs supermarkets, real estate, and many other companies. Microsoft’s search engine, ‘Bing.com’ was launched as something close to ‘biying’ in China; the pronunciation of ‘bing’ means sickness or disease; the alternate version for China has a meaning closer to ‘must answer’.

And a final Microsoft example of what not to do: Skydrive was Microsoft’s cloud storage brand, but that trademark has been ruled to infringe the brands of Sky, which is a UK-based cable television company, which also has a cloud-storage product. Thorough research would have found these issues early.

Error 2: Being Timely

Back in the 1980’s, a lot of technology products were branded to be futuristic, by naming them as ‘2000’. Gateway Computers was Gateway 2000 from their founding in 1985 up until 1998. That was around the time of the Y2K scare, where computers were (allegedly) going to stop working when the 19 rolled off the date; it’s unlikely they knew about that in 1985, but surely they planned to be in business in the 21st Century.

Early in this century, lots of products were trying to jump on the Windows XP brand-wagon, by tacking ‘XP’ onto their names. That led to a lot of products that had to be rebranded later on when their names seemed to match an obsolete product. Even Microsoft made that mistake; Microsoft Office XP launched during the Windows XP period, and the name similarity with Windows XP confused many consumers into thinking that Office XP was a part of Windows XP. Versions of Office after XP are all named by years, starting with 2003.

Error 3: Cute-zy Names

Don’t get too clever. “E-Z Form Filler” sounds like a non-standard spelling of “Easy”, which helps to establish a name as not a standard word, which is what you want when trying to create a trademark. And that does work, in American English. In the rest of the English-speaking world, it’s pronounced “Eee-Zed” and doesn’t really carry any meaning.

Error 4: Someone Else’s Trademark

If your product works with some other product, there are some additional issues. For example, a utility app that does something with files from Microsoft Outlook must not be named “Microsoft Outlook File Utility”. It could be “File Utility for Microsoft Outlook”. It could be “Your-Company-Name Utility for Outlook”. Or it could be named with a gibberish name, more baby babble. It just can’t use somebody else’s trademark as the beginning of its own name. There are no exceptions to this rule. So in this case, only Microsoft has the right to name a product “Microsoft Outlook Utility”.

Why is that? Well, first, you aren’t Microsoft. Microsoft, and nearly every other large company in the software industry, has registered trademarks and service marks which include their company name, all their product names, and all their special services, and they regularly search for, locate, and vigorously defend their intellectual property against anyone who is using their ‘marks’ as part of their own product names, or in any other way that does not add value to their own products, or that could potentially ‘dilute’ the recognition of their marks.

Create your own product identity, your own company identity, and you will be able to succeed based on your own product’s unique value in the software market. And research, research, research before you launch.

Jerry Stern is the author of the Startupware.com blog on Starting up Software Companies and Software that Autostarts.