Many small businesses have not yet trademarked their name. Though registering a trademark or service mark is the best way to protect your business name, some protection is still afforded to you if you have not registered.
Perform a trademark search to make sure you are the only one using the name. If so, immediately begin using your business name in your advertisements. Your products and services should carry your name, as well as any storefronts, physical or online.
If another business uses the likeness of your name, which results in confusion amongst consumers, this may constitute unfair competition. The key in determining unfair competition or infringement, is whether confusion exists in deciphering the difference between two businesses. This creates a legal gray area, and the competitor may be subject to penalties.
- How Do I Find Out if Another Business is Using My Name?
- What Should I Do if Another Business is Claiming to Have Used My Business Name First?
- When Can I Stop Another Company From Using My Name?
- What Relief Is Available to Me if Someone Else is Using My Business Name?
- Do I Need a Lawyer if Someone Else is Using My Business Name?
Every state has a complete list of all registered business names. You can find them either on your state’s Secretary of State website, or by sending in a request to your Secretary of State. Checking to see if the name is available is free, but it if you’d like to reserve the name you will have to pay a fee. If you are looking to register your business in another state, which you will want to do if you want to expand your business in that state, then it is important to check and see if your name is already filed in that state.
The question of, “who was first?” comes down to proving it was indeed you, not your competitor who first used the name. In order to do so, you’ll need records that document when exactly you started using your business’ name. Records such as dated newspapers or magazines that which you advertised, labels, apparel, products, etc., that can show when you started using the name, and help you prove your case.
We’ve established that your business name doesn’t necessarily have to be registered in order to be protected. If another company is using your name identically or similarly, you may be able to bring action against your competitor. If the competitor’s name is similar, you must show that the two businesses are operating under the same premise, which confuses consumers. If so, a case of infringement is possible.
If your case goes to court, and the judge rules in your favor, this is injunctive relief which tells your competitor to refrain from using your business name. If your business lost money due to the infringement of your business name, the court may award damages.
Intellectual property law is very complex. When it comes to your business, an experienced business lawyer can assist you in determining infringement and unfair competition, as well as performing trademark searches. The importance of preserving your business’ name is essential, and a qualified attorney can help.