Someone Else Has My Business Name

[Tizimarezie]

Cute, Wick'n'Wax, but (once again) a domain name (i.e. aromafieldscandles.com) is not the same as a business name (i.e. Aroma Fields).

And:

That business could have started way before they got a website.

Absolutely true! And so could I have. But, realistically, I had online presence before she did, therefore, I was USING my business name on the Internet before she was and established an online business with that name before she came along.

For those of you were interested in finding out more, please read the article below. I've made large and bold the points that are extremely relavent to the comments some of you have made. It doesn't matter how long she may have been using her name outside of the Internet. I was using the name on the Internet and established it here before she did. It also brings home the point that she should have (as I stated before) taken the time to research the Internet before putting her name out there. Because, as this article mentions, the confusion that she is potentially creating can very well be a legal issue. Read on...

"Choosing the best name for your new company, and how to protect it.

The two concerns for startup business names are the legal requirements, and the commercial use. We are talking about the name of your business, in this section, not your trademarks, or service marks, logos, or slogans. Trademark law protects product names, logos, trade names, even some slogans as trademarks or service marks. Copyright law protects works or art, fiction, movies, art, sculpture, and other creative works. Business law, however, does not fully guarantee you the exclusive use of your business name. To get close to exclusivity, you have to be first, you have to be national, and you have to be alert.

Owning and establishing a business name:

The most common misunderstanding about business names is about registering, protecting, and reserving business names. You can’t reserve a business name completely, you can’t have exclusive use. Think of a business name as a lot like a personal name, in that the first or oldest John Smith cannot claim exclusive use of that name. He can’t make all the other John Smiths change their names. So too, the first Smith’s Restaurant can’t stop all other Smith Restaurants from using that same name. McDonald’s Hamburgers can’t make McDonald’s Hardware Store change its name, and McDonald’s Hardware Store in Manhattan can’t sue McDonald’s Hardware Store in San Francisco.

However, just as you have rights to your own identity, so does your company. One John Smith can sue another John Smith for using his identity, having bills sent to the wrong address, or purposely confusing people. McDonald’s Hamburgers can sue just about anybody trying to use McDonald’s for a business selling fast foods.

The confusion starts because business names are registered by different authorities in different places, and on different levels.

• The first and simplest business name is your own name, which might be enough for John Smith using Smith Consulting or hosting Smith’s Restaurant. This kind of business name normally requires no additional paperwork, although most business owners end up registering a name anyhow to establish their legal claim to it.
  
• The second normal common level of business names is called DBA (for “Doing Business As”) or Fictitious Business Name, which gives an individual the right to operate under a business name with signs, bank accounts, checks, and so on. These are generally registered and legalized by county governments within states. There might be a McDonald’s Hardware Store as a DBA in many counties within a given state, and across many different states. To register a business with a fictitious business name, call your county government for details. You can expect that you’ll have to visit an office in the county government, pay a fee of less than $100, and do some legal advertising, also less than $100, probably using forms you can fill out in the same office. Somebody will probably look up the registry to make sure that yours is the first business in the county with that name. Details will actually vary depending on which county you’re in.
  
• The third level is the corporation, regardless of its various corporate entities. Whether they are S Corporations, C Corporations, LLCs, or whatever, a corporation is registered at the state level and no two can have the exact same name in each state. However, there is no guarantee that there won’t be many businesses registered as McDonald’s Hardware Store in several counties in a state, and a corporation registered as McDonald’s Hardware Corporation. This kind of duplication happens. To establish a corporation, you can use national services such as The Company Corporation, or a local attorney. The corporate forms will go to the state, and details will depend on which state you’re in.

Even though duplicate business names are very possible, and quite common, you do still have the right to protect and defend you own business name, once you’ve built the business around it. The key to this is confusion and confusing identity. As we said above, one John Smith can sue another John Smith for purposely confusing their identities. So too, McDonald’s Hamburgers can and should sue anybody who starts a new restaurant named McDonald’s serving fast foods.

On this point, when one business is confused with another, being first matters. When somebody tries to establish a second McDonald’s Hardware where it would confuse people with the first, then the first McDonald’s has a legal right to prevent it. If the second store puts up a sign, then the first store should take quick legal action to stop it. The longer the first store ignores the second, the better the case of the second store. When the whole mess goes to court, the first one to use the name is likely to win, but if the first one sat quietly while the other one built the name, then there is more doubt. An existing business should always watch out for people using the same or confusingly similar names, because the sooner it complains, the better for its legal arguments.

Researching a name’s availability:

So you see you can’t absolutely guarantee that nobody has the name you want, but you can at least try. The fastest and simplest way to start researching a name is to do an Internet search. Search about half a dozen of your favorite searchers and see whether or not the name you’re considering is already taken. You don’t want to name a business with a name that can cause problems later, because it confuses you with other businesses. That’s obvious, but how do you research a name to make sure there won’t be a conflict? Search the Web. Start with your favorite searches and see whether anything turns up on the company name you’re considering.

Ultimately, you really protect your business name only by using it. Corporations are registered by states, and factitious business names are registered in counties. Registering a name doesn’t really protect it though, because the same name could legally exist in many other states, many other counties.

You could be Acme Corporation in Illinois and legally own that corporation in that state, but there could be another Acme Corporation in every other state, and every one of them is legal until you win a lawsuit proving that they are trading on the commercial interests you own. When you really get protection is when you use that name, and therefore when you find somebody else using it you can prove that you had it first, so they are trading on your name. There are lots of McDonald’s restaurants around, and McDonald’s can’t stop them from using that name if they had it early enough, and especially if they aren’t pretending to be a fast food hamburger joint. The attempt to confuse is very important.

Choosing a business name:

The choice of a business name is very important, worth taking time to develop. Don’t end up with a name that you can’t live with. Look for something that describes your business, is easy to explain, fits on the signs, and works."

In summary, I am Aroma Fields and I've established my name and my business on the Interent long before she came here and google proves it. She either chose to overlook doing any research to see if the name was already being used thereby avoiding confusion....or she purposely decided that she could throw her business online and trade off of the business I've already established under that name. According to this article, that's a big no-no. Giving her the benefit of the doubt and assuming she just overlooked doing any research (but seriously, would YOU do such a thing?), she probably needs a nice alert.

Have a lovely week, everyone!

[CareBear]

you posted here, it became a discussion as you intended. go see a lawyer.

[LuvMyCandles]

if you go to whois.net it gives you the name, address, and phone number of the other business.

[Vicky_CO]

Tiz you can be as upset about this as you want, you can bring all the arguments to the forefront that you want, you can post all of these articles. An article are just that an article it has no standing in the legal system. I bet I can find an article that has an opposing view.

Unless you are willing to go to a lawyer and start legal proceeding it does not matter. Laws concerning the internet are still a funny thing and still being developed. You will have to either go to her state and fight them or take it to a federal level.

This comes down to how far your you willing to go to protect your business name and do you really have the money to fight it because it is going to cost a lot of money to do this.

[Wick'n'Wax]

Cute, Wick'n'Wax, but (once again) a domain name (i.e. aromafieldscandles.com) is not the same as a business name (i.e. Aroma Fields).

Cute?

I didn't mention domain names. I mean on their front page of their website (aromafieldscandles) they say come and see US, aromafields on etsy. So aromafieldscandles are using the name aromafields too. Albeit it appears ON their website, its a business name, not the domain name

[madcitysue]

hmmm ... I would tread lightly on this one and ask questions before throwing accusations out there. What if you find out they've been in business longer than you but just didn't have a website until now and they decide to turn it around and require YOU to stop using the name "Aroma Fields"?

I'm with you Quack Soap on this one. Not everyone starts off on the web, especially in the candle business. She may well have been selling since 2000, legal and the rest, and you could be the one with a C&D letter on your hands.

~Sue

[Love2Scent]

I agree. I have been in business since 1999 but didn't open a website until 2002. I didn't want to go to all that expense and time until I knew if my biz was going to take off or not.

GL, I hope it all works out for you.

[fmsojka]

Just curious to see how all this turned out.

I recently found out that a large bath and body company is in the process of opening a line using my company name. I have been in business, selling my products under that name for 7 years. On the web, wholesale, retail, etc. I didn't get a trademark, started to several times, but got side tracked, and got lost trying to figure it out. WEnt to my lawyer,and he said to use a lawyer in that field. Again, I didn't. I decided recently to go ahead and trademark a couple of my product names, plus my company name. And found out about the large company, selling the same kinds of products. So rats. They are being allowed to use the name, had posted a letter for objection, (which why would I see that, in a trademark publication). They are selling product under the name yet. I am two weeks late, for the objection. Not sure what this all means. I will see my lawyer tomorrow and see what he says.

I have been reading up on trademarks, and company names trying to figure it out. so confusing. Those big companies have a team of lawyers to figure this all out.

[islandgirl]

I clicked on the first link Aromafieldscandles.com and got this:

Reported Attack Site!

WATCH OUT!!

This site has been blocked based on your security preferences.

Attack sites try to install programs that steal private information, use your computer to attack others, or damage your system.

Some attack sites intentionally distribute harmful software, but many are compromised without the knowledge or permission of their owners.

Edited July 5, 2010 by islandgirl

[Twoscentsworth]

go here, scroll down aways the first part is blank:

http://www.nolo.com/legal-encyclopedia/faqEditorial-29049.html

You really don't have a case....even if you had registered a tm you wouldn't .

[carol k]

I clicked on the first link Aromafieldscandles.com and got this:

Reported Attack Site!

WATCH OUT!!

This site has been blocked based on your security preferences.

Attack sites try to install programs that steal private information, use your computer to attack others, or damage your system.

Some attack sites intentionally distribute harmful software, but many are compromised without the knowledge or permission of their owners.

I got this warning awhile back, downloaded what they told me to. That is the real virus/worm/trojan. Just be careful & keep a watchful eye on your computer. If you have a good anti-virus it will take care of it.

[country bee]

that happened to me also and the business was right about 200 miles from me!I called them and was polite to them and they were very rude!

heck -no- they did not care how long I carried the name-there on line name was not even the name of there actaul business !It did not get me any where except upset and that was that!AS long as it is not exact-no one cares!