Someone else is using my business name

greenpea

A while back I set up google alerts on my business domain name "InitialPhotography", and now I'm glad I did.

I just found that there is another business that licensed with the same business name operating in the same state as us with a slightly different domain name. We're www.initialphotography.com and they're www.initialphoto.com.

My business was started in April of 2006, and their business was started in July of 2009. I thought that the state's business licensing department is suppose to prevent two businesses from operating with the same business name, in the same state, working in the same sector.

I'm not terribly worried about the two domain names being confused, or about them stealing business from me or anything like that. What I am VERY concerned about is them using some of our business accounts at local photography stores or accessing our business bank accounts, or for my business to somehow get stuck with one of their bills.

I don't want to be a jerk to someone trying to start a photography business but I don't want to leave myself open to fraud.

Has anyone else ever had this happen to them? If so, how did you handle it?

anwmn1

Hey Andrew-



Sorry to hear that someone so close has such a similar name. Have you tried contacting them to see if they are aware of the similarity. It seems you are in different aspects of the business so they have as much to gain/lose as you with people going to the wrong site.

Not sure how to handle the business concerns such as banks or local accounts other than contacting each business and only authorizing specific names to access or use accounts.

Lesson to be learned by everyone here about purchasing domain names though. Purchase anything similar to your domain name to help prevent such an issue.


Hope everything is on the up and up with this couple.

greenpea

anwmn1 wrote:

Hey Andrew-



Sorry to hear that someone so close has such a similar name. Have you tried contacting them to see if they are aware of the similarity. It seems you are in different aspects of the business so they have as much to gain/lose as you with people going to the wrong site.

Not sure how to handle the business concerns such as banks or local accounts other than contacting each business and only authorizing specific names to access or use accounts.

Lesson to be learned by everyone here about purchasing domain names though. Purchase anything similar to your domain name to help prevent such an issue.


Hope everything is on the up and up with this couple.

Before I do anything I'm going to speak to a business lawyer friend of mine and try and understand what (if any) are the real world legal ramifications to me, and what I should consider before I decide to contact the person.

I'm also going to speak to the state's department of business licensing to find out how this can happen.

Mox

I'm not sure about WA, but when I licensed here in VA, they don't check for like business names if you're registering as a sole proprietor - only if LLC, etc. It doesn't make sense to me, because if I ever want to develop an LLC and someone beat me to it, I'll then have a problem. But since when has bureaucracy made sense?

Have you registered for a trademark? If being the only one with your biz name is important to you, I would recommend it. Of course, you'll want to check that no one has beat you to the punch.

greenpea

Mox wrote:

I'm not sure about WA, but when I licensed here in VA, they don't check for like business names if you're registering as a sole proprietor - only if LLC, etc. It doesn't make sense to me, because if I ever want to develop an LLC and someone beat me to it, I'll then have a problem. But since when has bureaucracy made sense?

Have you registered for a trademark? If being the only one with your biz name is important to you, I would recommend it. Of course, you'll want to check that no one has beat you to the punch.

I really don't care if anyone else has the same name (there is actually at least one other web site with the same sort of name). I'm just worried about getting into some legal or financial entanglement because we share the same business name in the same state.

I actually hate the ideal of going after someone trying to start a photography business just to cover my butt.

I did a search on the states business license site and both of us show up, it also notes on the site to be careful when you select your business name, because you could get sued if you are using a business name that is held by someone else.

Lesson to everyone: USE GOOGLE ALERTS! It's totally worth the cost!

Art Scott

This is why many businesses actually buy every single variation of their name and also TRADEMARK them .......tademarking can become a bit pricy but it keeps things like this from happening and so does buying up all the domain name variations.......that is not just DOT COM....but .net, .info, .tv, .usa ......a;; pf the TLD's (top level domains) out there.....so a person could conceivably have a roster of 10-100 domain names they own for the life of their business..........the ones that do this have said they do it to save on atty & court fees down the road from having to sue or being sued by someone with nearly the same name......

greenpea

Art Scott wrote:

This is why many businesses actually buy every single variation of their name and also TRADEMARK them .......tademarking can become a bit pricy but it keeps things like this from happening and so does buying up all the domain name variations.......that is not just DOT COM....but .net, .info, .tv, .usa ......a;; pf the TLD's (top level domains) out there.....so a person could conceivably have a roster of 10-100 domain names they own for the life of their business..........the ones that do this have said they do it to save on atty & court fees down the road from having to sue or being sued by someone with nearly the same name......

I talked with a friend whose business went thought this: $5000+ for trademarking their name then I can't even begin to think how many variations there are on the domain name

The biggest concern for me isn't the similarity of the domain name, its the fact that they are operating in the same state, doing the same business, with the exact same licensed business name. I just foresee potential for all sorts of weird problems that won't be fun to deal with.

SamirD

I would start with just calling them and letting them know that their name is the same as yours and that they shouldn't have been allowed to use that name by the state when registering it. See what their reaction is.

They may say sorry and switch to their 2nd choice name (we all have one). They may want to fight about it. At that point, I'd just say thank you and let your attorney handle it and send them a letter.

You definitely don't want another business confused with yours. You've worked hard to build what you have. You don't want someone else 'coat tailing' off your work, or worse, damaging your reputation with inferior work confused as yours. Preventive measures are best in cases like this.

greenpea

SamirD wrote:

I would start with just calling them and letting them know that their name is the same as yours and that they shouldn't have been allowed to use that name by the state when registering it. See what their reaction is.

They may say sorry and switch to their 2nd choice name (we all have one). They may want to fight about it. At that point, I'd just say thank you and let your attorney handle it and send them a letter.

You definitely don't want another business confused with yours. You've worked hard to build what you have. You don't want someone else 'coat tailing' off your work, or worse, damaging your reputation with inferior work confused as yours. Preventive measures are best in cases like this.

I'm not sure that there is anything to prevent two companies (that are not corporations) from having the same name. I think the only thing the state does to prevent it from happening is a notice on the state's web site that says that if you use a name that someone else is using that you could be sued. We are confirming this is the case with the state dept of licensing on Monday.

To complicate matters it turns out they also have an account with the same bank (same bank, same business name, same state) Found this out when we tried to close an account that we weren't using and were being charged a monthly fee on, and the question came up, "which Initial Photography are you?"

I plan on calling the other Initial Photography and explaining the situation to them, and ask them to change their name. I just want to make sure I'm clear about my rights before I do call them (not that I plan on threatening them or anything).

daylightimages

Here in New Jersey they do check for name similarities. Not long after I registered my Daylight Images name (which is now an umbrella name for all my media related work) I had someone write me saying the state needed permission from me to register her preferred business name (actually, the two names were different enough that it wouldn't have raised a flag with me). I told 'em go ahead. I guess some states check, some states don't.

SamirD

greenpea wrote:

I'm not sure that there is anything to prevent two companies (that are not corporations) from having the same name. I think the only thing the state does to prevent it from happening is a notice on the state's web site that says that if you use a name that someone else is using that you could be sued. We are confirming this is the case with the state dept of licensing on Monday.

To complicate matters it turns out they also have an account with the same bank (same bank, same business name, same state) Found this out when we tried to close an account that we weren't using and were being charged a monthly fee on, and the question came up, "which Initial Photography are you?"

I plan on calling the other Initial Photography and explaining the situation to them, and ask them to change their name. I just want to make sure I'm clear about my rights before I do call them (not that I plan on threatening them or anything).

Hmmm...difficult situation. I'd get some legal advice to know exactly what your rights are. Worst case scenario, I guess you'll the one who will have to move banks, change phone numbers, and change your business name.

Dionysus

my understanding was that business names only have to be just fractionally different to be considered different, it was like a small percentage difference too. Dropping the "graphy" might be enough to make it different enough to operate under the name, legally.

greenpea

Dionysus wrote:

my understanding was that business names only have to be just fractionally different to be considered different, it was like a small percentage difference too. Dropping the "graphy" might be enough to make it different enough to operate under the name, legally.

Although we have the URL initialphotography.com and they have the URL initialphoto.com we are both listed with the state as having the same business name Initial Photography and we both have accounts with the same bank with that name.

We spoke to the state dept. of business licensing and the said we're out of luck. The state only prevents corporations and LLCs from doing business under the same name, not partnerships or sole proprietors :nah

I'm going to mail the other company and politely ask them to change their name, then see where it goes from there.

Mox

I'm just going to throw my 2 cents in about a trademark again, then I'll leave it alone. I know you say you don't care about people using your name aside from legal hassles, but the problem is - as soon as you email this other company, they may do a tm search, find that it's not registered or pending, and then file for it themselves. If someone else registers it before you do, they can then force you to change your name. It doesn't matter that you had it first.

If you don't mind changing your company's name, then it's no biggie, of course. Otherwise, I'd get the application rolling before I contacted them.

OK, going back to my rock now...;)

greenpea

Mox wrote:

I'm just going to throw my 2 cents in about a trademark again, then I'll leave it alone. I know you say you don't care about people using your name aside from legal hassles, but the problem is - as soon as you email this other company, they may do a tm search, find that it's not registered or pending, and then file for it themselves. If someone else registers it before you do, they can then force you to change your name. It doesn't matter that you had it first.

If you don't mind changing your company's name, then it's no biggie, of course. Otherwise, I'd get the application rolling before I contacted them.

OK, going back to my rock now...;)

I would have a hard time dealing with the time, effort, and $5K+ required for trademarking my name. I do realize that trademarking my name is the only real way to protect a business name.

I am considering something that a lawyer friend of mine mentioned that is something like a State of Washington Trademark, it's far cheaper and it would at least protect my business name in my home state of Washington.

Mox

My federal trademark app only cost $375. Good luck, either way!

greenpea

Mox wrote:

My federal trademark app only cost $375. Good luck, either way!

I think I've been talking to the wrong people about federal trademarks!

Art Scott

Federal Trade Mark and Patent Office Price List .......for Trade Marks of course.......seems $375 is the going price....when I originally said it could get pricey....I meant if your started trade marking several variations of your name........

RogersDA

greenpea wrote:

I think I've been talking to the wrong people about federal trademarks!

If you don't know what you are doing then going at this pro se may not be a wise decision. Seek guidance from a registered trademark attorney. The process to register a trademark can be time-consuming and have a lot of challenges - especially if faced with trademark opposition.

SamirD

Terrible situation, but great insight in this thread. I hope a smooth and easy solution can be found, like the other owner just says okay and changes names.

Angelo

greenpea wrote:

...I thought that the state's business licensing department is suppose to prevent two businesses from operating with the same business name...

note: i am not an attorney

Not sure that's accurate.

Absent clarity on your situation I'm assuming you operate under a fictitious business name?

In most states of the US, FBNs are registered in your county of residence, while business operating licenses are issued by local municipalities. If you are incorporated to conduct business in WA then you are afforded several protections on a statewide basis.

This division of authority lends to conflict and confusion such as you're experiencing.

barring incorporation your means of protection is trademark registration.

considering the earlier date of your start-up and the method of registration / licensing you obtained you might have the upper hand in imposing a cease and desist order on the offending party.



edit: oops, I'm a bit late to the game...


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greenpea

Thanks Angelo.

I (we) are set up as a partnership. They (she) is set up as a sole proprietor. We were essentially told as much (as what you said) by the state licensing department when we discussed the issue with them.

I think the way this is going to go down is a polite request by us for her to change her business name (which I have yet to do). If that doesn't work, then it becomes a question of how far do we want to take this.

I would like to believe this is an honest mistake. I would hate to think about being on the opposite side of things and have someone call me up and threaten to sue me (which is not how I intend to go into this).

However when all is said and done, maybe I can come up with some layman's best practices for how to deal with this sort of situation. There are a lot of photographers out there, with more getting in the game every day. This is bound to happen to others. I guess the question to the dgrin community, would this be a problem for you if you found someone else operating under the same (or similar) business name?

kdog

When you write your letter to the woman, be sure to mention that your main line of business is pornography. It's not true of course, but she doesn't know that and it would provide a little more incentive for her to distance herself as far as possible from you.

SamirD

kdog wrote:

When you write your letter to the woman, be sure to mention that your main line of business is pornography. It's not true of course, but she doesn't know that and it would provide a little more incentive for her to distance herself as far as possible from you.

HAHA! Awesome technique. I don't think it would work as one look at the web site would prove otherwise, but what a shock factor!

Since you already a partnership, find out how easily you can be changed to an LLC. When you elect to be treated as an S corp, your tax status is the exact same as a partnership. Plus, you are afforded greater liability protection.

greenpea

Okay. Still haven't sent the letter yet.

I did speak to a another lawyer friend about filing for trademark. Yes it is only $375 to file, but then it needs to be reviewed in every country, and if any country has any questions about your filing you have problems. For example if Korea has a question about your filing you need to be able to respond to and have your response translated in to Korean?! So what I was told is the costs can increase quickly.

Robertk

greenpea wrote:

Okay. Still haven't sent the letter yet.

I did speak to a another lawyer friend about filing for trademark. Yes it is only $375 to file, but then it needs to be reviewed in every country, and if any country has any questions about your filing you have problems. For example if Korea has a question about your filing you need to be able to respond to and have your response translated in to Korean?! So what I was told is the costs can increase quickly.

If your seriously worried the first step would be to put TM on everything. That means that its an unregistered trade mark. Unregistered marks provide protection in your region of operation or in regions you might expand.

entropysedge

Also, if you are not willing to go to the expense of defending a trademark, do not apply for one ... trademark FAQ : http://www.uspto.gov/trademarks/basics/index.jsp

greenpea

An update on this issue:

I have been in contact with the other business operating with the same trade name and they said that their name choice was not meant to cause any harm to us or our business, and that they would be more than willing to change their business name.

They also expressed the same confusion that I did, that the Washington State Department of Licensing does not care if two or more sole proprietorship or partnerships are opperating under the same trade name. scratch

So for now, it looks like politely asking does still work in the world of business!

leaforte

In Washington I believe its like $10 to trademark and register variations on top of the $20 state licence fee. I am champion photography, but trademarked champion photo and a few oter variations just in case. I believe the state even suggested a few I may want to cover....champion imaging/images etc.

greenpea

leaforte wrote:

In Washington I believe its like $10 to trademark and register variations on top of the $20 state licence fee. I am champion photography, but trademarked champion photo and a few oter variations just in case. I believe the state even suggested a few I may want to cover....champion imaging/images etc.

Do you have any information you could post to this thread (or pm me) about how Washington State trademarking works. It was mentioned to me that in Washington there is a state wide trademark different from international trademark and I assume this is what you were talking about, however I can't seem to find any information about it.

leaforte

greenpea wrote:

Do you have any information you could post to this thread (or pm me) about how Washington State trademarking works. It was mentioned to me that in Washington there is a state wide trademark different from international trademark and I assume this is what you were talking about, however I can't seem to find any information about it.

I would start with this link http://www.dol.wa.gov/business/