Legal Question in Business Law in California

You've raised an important issue for anyone starting a business -- Can I use the name I want? The analysis is a "cost/benefit" analysis. Questions you should ask yourself include how much you intend to spending branding your business, how easy (or hard) would it be to change your name if someone demanded you do so, and what is the likelihood of that happening. Your gut instinct is correct -- there are numerous trademarks out there, some of which could potentially cause confusion with your business name, to the detriment of the trademark owner or business. If someone started a competing business, after you, with a name or mark so similar as to confuse potential customers as to the provider of the goods or service, you would have the right to stop them.

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I find it fascinating that Mr. Browning is able to conclude that there are competing trademarked names that match or would be confused with yours without conducting a search of the PTO records and doing an analysis for likelyhood of confusion. The fact of the matter is that The Body Shop is such a generic name, and is of such a descriptive nature, that although I am not a trademark expert I would be astounded if the PTO would even accept it for registration. And even if they did, trademarks are traditionally limited by type of product or service. So you could trademark The Body Shop for fitness, and someone else would still be free to use The Body Shop for auto repair. There is recent legislation that protects major public brands, such as Nike, Cherrio's, and the like. So you now may have trouble if you open a Nike auto repair shop. You already would have had trouble with using Nike for fitness of course. So the bottom line is that I doubt anyone can have a trade or service mark for The Body Shop for fitness centers. The other protential problem, though, is fictitious business name useage. Since you are not a corporation or LLC named The Body Shop, you are doing business under a fictitious name. That must be registered with the county in which you are located. Your local county clerk's website will tell you how to do that.

You may want to consult with a trademark attorney in your area. Doing a search to see if there are any similar businesses using a similar or exact name is always the number one step before adopting a business name. Best of luck.

Kevin B. Murphy, B.S., M.B.A., J.D. - Mr. Franchise

Franchise Attorney

I agree that the USPTO would not grant anyone an exclusive trademark for "The Body Shop." Like "Joe's Bar & Grill," it's way too generic. I also believe that to avoid hassles and confusion not based on trademark law, but perhaps on state law or common law unfair competition principles, or maybe on no law at all, I'd use the name only after making a pretty thorough check to see who else is using the name nearby, and for what kind of business, and choose another name if an existing business is sufficiently nearby and in a sufficiently similar business to have a legitimate gripe. Place yourself in their position and ask yourself if you'd be upset.