Summary
Explaining the difference between available names on the Secretary of State website and trademarks
Not so fast. This question has tripped up people before. To form an LLC or corporation, in most states you go to the Secretary of State’s website. There, you can check if your proposed business name is “available.” But “available” does not tell the whole story.
The Secretary of State is essentially just trying to determine whether it can open a file in its office under that name. It is not the same thing as determining that the name is free to use in actual business transactions with the public as a trademark or brand.
Determining whether a name can be used as a trademark depends on several factors, including whether someone else already uses a similar name in a way that might result in confusion.
Consider, for example, Mountain Dew. If you searched “Mountain Dew” at the South Carolina Secretary of State’s website for business entities, you would see that the “name is available.” Yet, PepsiCo owns dozens of federal trademark registrations for “Mountain Dew.” So don’t go forming your “Mountain Dew, LLC” company at the South Carolina Secretary of State and think you’re good to start selling drinks under that name.
The best way to begin checking on whether a name is available to use as a trademark is to search at the U.S. Patent & Trademark Office. Even this is just a starting point, since trademarks do not have to be registered to exist. Further complicating matters, the South Carolina Secretary of State (like similar offices in other states) also registers trademarks on the state level, but this is in a different division from the Business Entities division that is involved with forming LLCs and corporations, and usually involves a different kind of search.