Starting your own photography business can be a daunting task. There are a lot of important decisions you have to make at the beginning that can have unexpected repercussions or costs later as your business grows. To get a great overview on many of the business, legal and financial aspects of starting a photography business, check out this article written by Jim Harmer based off his experiences.
Picking a business name can be one of the most difficult, but important, decisions you make when starting any business. When it comes to starting a photography business, you really have four choices, each of which have advantages and disadvantages.
The first, and probably most popular method for naming your business is using your personal name. For example, Susan Davis might call her business Susan Davis Photography. The second method is choosing a business name based upon your location. For example, if you live in Las Vegas, you could call your business Las Vegas Photography or Southern Nevada Photographer. The third method is choosing a business name based on the specific genre you shoot. For example, “Your Special Day Photography” indicates a special event/wedding photographer. Often, this method will be combined with one of the first two methods. So you might use a name like Susie's Newborn Photography or Allentown Wedding Photography. Finally, the last method for naming a business is something completely random. For example, Top Notch Photography.
A few things you want to keep in mind when choosing which method to use are (1) potential trademark issues; (2) the market you are trying to reach; (3) potential future business plans; and (4) marketing strategies.
POTENTIAL TRADEMARK ISSUES
Disclaimer: While I am an attorney with experience in trademarks and intellectual property, this article is not intended to give legal advice and should not be used as a substitute for seeking independent legal advice tailored to your own circumstances.
This section is long, but there is a lot to discuss. The remaining sections will be much shorter I promise.
If you don't know what you are doing (and even if you do), trademark issues can cause a huge headache. A trademark is a symbol or word(s) that represent a business, service or good. In essence, it is the thing that tells the consumer the origin of the good or service they are purchasing. Any one business can own several trademarks associated with its goods or services. For example, McDonald's (or whatever company owns McDonald's) owns, among others, the following trademarks: “McDonald's”; “Big Mac”; “Happy Meal”; “McMuffin”; “McFlurry”; “I'm Lovin' It”; the golden arches symbol; and the Ronald McDonald character. For a strictly photography business, you will most likely only be dealing with two trademarks: the business name and logo.
There are two methods for obtaining a trademark. First, you can register the trademark with the United States Patent and Trademark Office, known as the USPTO. This gives you a registered trademark that you can then enforce to keep others from using your mark. The second method, which many people do not understand, is obtaining a trademark through simple use of the mark. The important thing here is to realize a trademark does not have to be registered to be a trademark. I would never recommend not registering your trademark, but keep in mind there may be an unregistered trademark out there you have to worry about when choosing your business name. The downside of not registering your mark is that you are only protected for the specific goods/services you are known for in the location where you are known. For example, if your business name is “Corporate Headshotz” and you operate only in San Antonio, Texas and all you are known for is shooting corporate head shots and events, your trademark would only cover corporate head shots and events in San Antonio, Texas. If you registered that mark, you would protect it in all fifty states for all types of photography. If a dispute arose over a trademark that is unregistered, the important thing to remember is the most important date is the date the mark is first used in commerce, not necessarily the date it is registered with the USPTO. As such, a business could register a mark after you, but still win in a lawsuit if they were actually using the mark before you.
Now that you have a basic understanding of trademarks, you need to know how to determine whether your desired business name is available. There are a number of services available if you search online that will do a very extensive search for you. The cost for a single search will run you $700-$1,000, but it is the safest way to ensure you will not face any legal issues with your trademark. For a lot of simple trademarks, however, I think this might be overkill. You can do a couple simple searches yourself that will allow you to proceed with relative confidence.
The first place to go is a service offered by the USPTO called a TESS Search. Here you can do a basic word search. Keep in mind, the results you see will show you “live” and “dead” marks. The other important thing to realize is the TESS search is strictly limited to the actual word searched. That means searching for “Tie the Knot” likely will not show you marks such as “Tying the Knot” or “Knot Tying.” Because of this, you need to search for every possible variation of the mark you can think of. I will often just take the root word if possible and search for that. You will get a lot of results, but it is usually faster and more inclusive than trying to figure out different variations. For example, searching for “mount” will avoid the need to do separate searches for “mountain,” “mountaintop,” “mountainridge,” “mountainz,” and so forth. If you are a little more tech-savy, you can control the search parameters to provide better results.
Another thing you need to pay attention to in these searches is what classes of goods the trademarks are registered for. A trademark is only applicable to the goods or services it is being used for. For example, if “Tie the Knot” is registered for a company that sells ropes, it won't impact you as a wedding photography business.
Once you are satisfied with the TESS search, turn to Google. This will help you identify potential competing marks that have not registered with the USPTO. Try doing a search globally and another just in your location. For example, if you want to trademark “Smokin' Hot Senior Pics” and your business is in Wyoming, you probably do not need to worry about a business isolated to Alabama with the same name as long as the mark has not been registered with the USPTO.
One other place I like to check for small businesses is the secretary of state website for the state they will be operating in. Most states will allow you to register a trademark within that state. Searching for these marks is often annoyingly burdensome and can require mailing in requests, but it is a good way to identify potential conflicts in your state that may not appear on TESS or Google. I do not know why people bother registering a trademark with their state, it is easy and relatively cheap to register a trademark with the USPTO ($225 for application fee) and covers all fifty states.
I will caution you that the USPTO can be over-inclusive when it comes to potentially competing marks so you want to be careful. I have met many people who think changing the spelling of a word is sufficient. Changing “shots” to “shotz” will not help you get past a competing mark. Likewise, if someone has trademarked “Top Notch Images” for paintings and posters, you may not be able to register it for a photography business. For example, I once had a trademark for protein supplements refused by the USPTO for a similar, but different, trademark that was used in nutritional snack food. The two marks had the same root word, but were different variations and spelled differently, and one was linked to protein powder while the other was for something that looked like a puffed corn snack. While I was confident there would not be an issue, the USPTO disagreed.
The general test used by the USPTO is whether the competing mark could cause any confusion to the consumer about the origin of the goods or services. So, for my client above, the USPTO determined the public could reasonably think the same company would produce both nutritional snacks and protein powder and a consumer may think they were buying protein powder from the company that made the snacks. I always recommend to find a different name if there is any concern about whether it will get rejected because of a competing mark. Dealing with a trademark infringement lawsuit is an expensive and time-consuming endeavor most new photography businesses are not equipped to handle.
A FEW MORE NOTES ON TRADEMARK CONSIDERATIONS
There are a few other important notes when thinking about trademarks. First, you never have to worry about trademarks if your business is simply your name. You have a right to use your name regardless of what others have trademarked. A famous case in every intellectual property text book involves a restaurant that included the name “McDonald.” As you would imagine, McDonald's filed suit against the restaurant. McDonald's ultimately lost because the owner of the other restaurant's name was McDonald. As such, he had a right to use that name with his business, but he still wouldn't have been able to sell something called a Big Mac or use the golden arches in his logo.
Another thing to remember is generic descriptions cannot be trademark. You may think you hit the jackpot because “Great Wedding Photographer” is not trademarked (It may be, I didn't actually check), but that is not an enforceable trademark because “wedding photographer” is just a description of what service you are offering. A trademark cannot be used as a tool to limit your competition's right to describe what they offer. For this reason, some companies have lost their trademark, or had to fight really hard to keep it. Think of “xerox,” “q tip,” “escalator” or even “coke.”
One final thing deals with locations. Locations generally cannot be trademarked within the area described by the location. For example, a photographer in Utah is not able to trademark the name “Utah Wedding Photography.” This doesn't mean you can't use this as a business name, it just means you can't stop someone else from using the same name. There are exceptions to this, but they likely won't apply to photography businesses unless you are insanely successful.
BUSINESS AND MARKETING PLANS
It is important to think long-term about the market you want to reach. When you are starting out, you may get great results finding clients with a name like “Chicago Budget Wedding Photography,” but that name will keep you from ever obtaining higher-end clients willing to spend more on their photographer. If you want to master the market of budget weddings and that is all you care about, then it could be a great name for you.
Using your name will ensure you are not limited from any potential market, but it also means you aren't targeting a specific market and ranking higher on Google searches for those markets, whether locations or genres. The decision on the market you want to reach will likely depend on your long-term business plans.
There are at least three big things you want to consider when thinking about the potential of your future business. First, whether you are going to stick to one genre. If your name includes a reference to weddings, newborns, seniors, landscapes, fine art or sports, you will always be limited to that subject. On the flip side, if you know right now that you only want to master one genre, including that subject in your business name is a great way rank higher on Google and to specifically market to the right consumers.
A second consideration is whether you are going to limit your business to one location. If you want to expand your reach in the future, you probably do not want to include your city in your business name. For example, if you choose the name “Susie Smith's Photography of Portland” (referencing Oregon, not Maine), you will have trouble trying to expand and pick up jobs in southern Washington or on the Oregon coast. On the other hand, using a location can be a powerful marketing tool if you know you will be limited to a specific area. This is especially true if you have a well-defined and smaller location. “Boston Newborn Photography” may not be as effective as “Reno Newborn Photography.” If you are limited to a smaller town, there is a good chance you would be a top ranking result on a number of specific, but common, Google searches. The advantage will not be the same in an area where dozens or hundreds of similar photographers are going to show up.
Finally, you need to decide whether you will ever want to expand your business to include multiple photographers. If your business name is “Mark Simmons Photography,” people are going to expect personal service from you. While you may be able to get away with using an assistant to help with non-photography aspects, they will expect Mark Simmons to personally do the photography. On the other hand, you could build a team of photographers without a problem if your name was something like “Wedding Chicks Photography,” but you would also be limiting yourself to female photographers.
Using your name
Examples include “Nick Page Photography,” “Bethany Wilken's Photography,” or “Hendricks Photography.”
This method is great if you want to build a personal brand that is not limited to any given genre or location. It works better if you do not have a very common name. If you Google something like Allen Smith photography, you will find a long list of businesses, which will make it harder for clients to find you. This method is the best solution if you have any concerns about trademark infringement. This method is not as good if you are going to rely on internet marketing as you cannot target specific markets.
Using a location
Examples include “Mark Zane's Photography of Seattle,” “Denver Special Events Photography,” or “Long Island Photography.”
This method is great if you plan to use targeting marketing and want to find clients through Google. This method does not work well if you have plans to grow your business beyond your local market. Depending on what else is included in your name, you may also have problems trademarking your name and face problems building a brand based on similarly-named photography businesses.
Using a genre
Examples include “Lullaby Lane Newborn Photography,” “Top of the Class Senior Portraits,” or “Natasha Kingley Wedding Photography.”
This is another method that is great if you want to maximize Google results targeting a specific audience. A name like “Allan's Memphis Wedding Photography” is going to be great on Google for anybody searching for Memphis wedding photographers. This method is not ideal for anyone that does not want to be pigeonholed into a specific genre of photography. This is an important consideration for new photographers. I have known many photographers that only did family shoots or senior portraits when they started out, but eventually expanded to do weddings or boudoir or many other things. If you are going to include a genre in our title, be positive you are not going to expand your offerings.
Using something random
This is ideal if you think you may expand your business to include multiple photographers. It is also great if you want to combine it with a genre or location to help target audiences and make marketing easier. Depending on the name, it can be a bad choice if your want to focus on high-end clients. Generic names usually appeal to the masses and can be avoided by people wanting something special. For example, something like “All-Star Shotz” might help you get a bunch of team shoots or cheaper senior portraits, but I don't imagine you would find much success with high-end portraits or weddings.