What's In A Name?

[budd4766]

Ok...what do you do when you create a business name and have cards and stuff printed, stamps made, etc., and then years later, you find somebody else just started using the same name for their own (similar) business?

No trademarks or copy writes or anything...yet....was trying to avoid all that....unless that's what it takes. I have no idea what's involved in getting all that done anyway.

Any thoughts?

[Kustom]

If you don't own the trademark you're setting yourself up for problems. Does the other business have it trademarked? If so you could be violating their trademark.

Ok...what do you do when you create a business name and have cards and stuff printed, stamps made, etc., and then years later, you find somebody else just started using the same name for their own (similar) business?

No trademarks or copy writes or anything...yet....was trying to avoid all that....unless that's what it takes. I have no idea what's involved in getting all that done anyway.

Any thoughts?

[Glendon]

Here is some very basic information on trademarks http://www.thomasfir...trademarks.html

Like copyrights, a lot of trademark protections are automatic when you start using a clearly uncommon image. "he key word in this question is "earned." Trademarks are not born; rather, they must be earned. By using a mark in connection with a good or service, the user acquires some trademark rights. Interestingly, though trademarks are protected under both state and federal law, you do not have to register a trademark in order to have it protected"

You would want to talk to someone with more legal training then I have (see: none), but basically whoever started using the name first has the claim.

Even if they registered and you didn't, if your business is the clearly older claim, then their trademark would probobly be invalidated if it went to court because they didn't do a proper search.

Edited August 4, 2012 by Glendon

[DoubleC]

Budd, I registered my name in VT. for 50 bucks. Actually doesn't protect me from anything other than no one would want my name anyway :-) But it does make me a legitimate business for things like shipping and wholesale accounts. And it looks cool on the wall as i sit here in my bedroom/shop/shipping center/office/ and so on.

[Northmount]

Generally ... Many locals have a statement that the name is not currently in use ... When you go to register a trade name. A company name or trade name is different from a trademark. A trade mark is generally registered to a company, that has registered its trade name. The trademark may or may not include all or part of the company name. The trade mark can be a simple graphic image with no company name displayed. For example, "System 1" is a trademark owned by "Bently Nevada" who was purchased by "GE Energy Services" owned by "GE". You have all seen GE in a circle, that is a trademark.

To protect a business name, it needs to be registered. If you have a trademark, it needs to be registered. That will protect the name and trademark only in the state or province it is registered in. If you have deep enough pockets, you can sue others in other states for infringing, but you need more money to beat them. Makes for a nice legal game that only the lawyers win, on both sides.

CTG

[DoubleC]

Exactly CTG and registering a TM or a product, none of it means a hill of beans when someone overseas sees your product and makes them, and sells them cheaply made for 1/3 of the price you charge. It's all an attorney game, not for we little folk just trying to get by.

[Bluesman]

Contact the business in question and explain the situation. If you have, and can prove, your continued use through commerce. You are the legal owner of that name. For example you call yourself ABC Leather and have been doing business under that name for several years. Show proof for local sales as well as Internet sales and the name belongs to you. This will hold up in a court of law. Now, you can register your business name with your State for small fee. This gives you State ownership. The same can be done with the Federal level. Now, this gives you no tax number, no right to sell. It only protects your name. Same goes the other way. When you setup an EIN or tax number to purchase wholesale it does nothing to protect your name. These are two seperate and exclusive issues. You may just find that the other person didn't know and will gladly change thier name. Or if they won't you can take them to small claims court. This only works if you are both in the same state. If it involves another State it gets dicey. I would call and go from there.

[K-Man]

You can contact the other entity and try working it out. If that doesn't work, you need to talk with an attorney who's area of speciality is Intellectual Property. They can advise you of the avenues available to you to resolve it.

[Iron Pounder]

Just went through this with our lawyer. If you have nothing better to do and a ton of money you can protect your name. If your last name isn't very common I guess that would be an easy way to keep others from using it. He told us a big corp like Coke spends millions per year protecting trademarks. We went round and round on a name and landed on one only to have a guy start up with the same name a few weeks later. He doesn't do leather but does do metal fab. Doesn't matter much to me as someday, hopefully soon I would love to just do leatherworking, other than seat pans, brackets and bars. He mainly does tanks, fenders and I think he hardtails some metrics as well.

I'm not sure an origianl business name is even out there. We only have so many words in english to use .

[budd4766]

Thanks for the advice, guys.

I'm not really sure what I'm going to do just yet. Now that the initial "shock" has worn off, I'm not sure I'm going to do anything just yet. I do not think there was any malicious intent on the other guy's part...just a lack of doing a search before naming his own. He's in Oregon, I'm in TN, so the only real problem I have with him is, when I tell someone do look for my business (Lazy K Leather) on Facebook, they find his personal page of the same name and, if they don't look a little harder, they think he's me. But, everybody that knows me or I've given a card too, knows they don't see my logo on there, and hopefully know to keep looking.

I don't care to get into the legal stuff with anybody, I don't make the money for that, and I'm sure he doesn't either...and it's not worth it to start a "fight" with a fellow leatherworker over it anyway at this point. I may just let it slide for now and see if it does become a problem later. Might contact him and see where that goes...maybe.

Thanks again,

Donnie

[BIGGUNDOCTOR]

I would contact him sooner than later. The longer this goes the tougher it will be to correct down the line. Who knows he may want to change so he is not confused with you.

[mojoewrkn]

Not to Hijack this thread but do you have to form a company(LLC, INC, etc) to register a name? Also can you get a tax ID without forming a company?

[DoubleC]

If you are a single owner you don't need to be an LLC etc. And I just called the state, a free number, and told them I needed an ein and they gave it to me right over the phone.

[bluesman1951]

Gallup New Mexico is the hub of art work for the southwest ,foreign people come there to steal ideas on a massive level. Some will buy the items they wish to copy others just take pictures . No matter where you are in the world or what you have done there is simply nothing to compare idea theft with as in Gallup . Besides being the heart of the Navajo reservation it is a selling place for perhaps 10,000 artist from reservations across the south west .People have been killed over disputes regarding copying of some ones work . Fact is generally there is nothing new under the sun .

Exactly CTG and registering a TM or a product, none of it means a hill of beans when someone overseas sees your product and makes them, and sells them cheaply made for 1/3 of the price you charge. It's all an attorney game, not for we little folk just trying to get by.

[Mad Moose]

First, let me say that I am not an attorney nor do I play one on TV.

Registering a Tradename or Trademark requires cash and time. Using a Tradename or Trademark instantly establishes ownership to the person or entity that first used it in an individual jurisdiction...i.e. City, County, State, Country. So the person or entity that can prove that they were the first to use that Tradename or Trademark in the area of dispute has the right to its continued use. For example: Party A registers the name Big John's Leather in Coos County OR in 1985 and only sells at local craft shows. Party B registers the name Big John's Leather in King County FL in 2012, but sells products in three states and has an Internet presence has the right to the name anywhere that sales have occured except Coos County OR because the name is currently registered there to someone else. If the Florida company did sell in Coos County OR, the Oregon company could force them to stop even if they did not register their Tradename of Trademark federally. If they had, they would also be entitled to recover attorney and other costs associated with defending their right.

The above I learned through personal experience defending a Tradename for a Public Safety Software company that I co-owned. The costs were outrageous, but worth it to use because our products and services dealt with Post 9-11 Bio-Terrorism detection and communication and were in use throughout a large portion of the US.

[akozicki]

Need a trademark or anythings up for grabs. Too bad.

[benandjonice]

I am an intellectual property attorney by day and a leatherworker by night. Although my focus is on patents, I took plenty of trademark classes in law school and counseled several non-profits regarding the protection of their trademarks. Some of what's been said on here is good, some is not, so here's a little info to clear things up.

There are state law trademark rights and federal rights, although they are generally similar (it varies state by state, but states generally follow the federal system). The basic idea and purpose of a trademark is to protect the consumer (NOT the trademark owner) from being confused about the source of their goods and services. Trademarks can be anything, a word, a picture, even a color if it becomes distinctive enough (the one I can think of is that pepto-bismol-pink brand of insulation, there was a court case about it, it's distinctive so people recognize it and they can stop others from using it). Trademarks are specific to the class of goods they are used for (think Diamond brand cashews and Diamond brand multimedia corporation, the computer company - they can coexist because nobody is going to think the Diamond computer company suddenly started selling tree nuts). Trademark rights are also geographically based - one state's law does not apply in the other states, federal law applies in all of the US and her territories but not outside (although some other countries recognize US rights by treaty). Just remember, all of trademark law go back to one question - whether or not a consumer will be confused about the source of the goods and services they buy.

Most states and the federal government recognize at least some limited rights as soon as you start using a name in commerce because that's the moment consumers start associating your goods with your name. A lot of trademark disputes come from arguments over who is the senior user, meaning who is the person that used the name first, and therefore has the strongest claim to the name. You get stronger protection the more unique your name is, so made up names get nearly the strongest protection (Kodak film & Xerox copiers get strong protection, Bill's Bait Shop gets basically no protection). Some trademarks become so strong that you just can't use them for anything else (no Coca-Cola Shirt Co., even if they didn't already make shirts). But the difference between common-law trademark rights, the kind you get as soon as you start using a mark, and registered marks are significant.

You can register a trademark on your own, and it's not particularly expensive, about $425 for a federal registration last I checked. Going with a lawyer is usually your best bet, not because you couldn't figure it out yourself but because unless you're careful you can describe your mark wrong and end up without the protection you thought you had and it's better not to be your own guinea pig in that situation. And there's no magic percentage difference you can use to make your mark different from someone elses - the question is whether people would be confused about the source of the goods you're selling.

So what does this mean for your average leatherworker who wants to make a buck selling his or her goods? Well, I'm not your lawyer so I can't give you specific advice. But generally you should avoid using someone elses name if you know about it. Most of the time a local joe isn't going to sue some other leatherworker in a different state who is using the same name, and he probably wouldn't win even if he did. But lawsuits take money, and you don't spend it unless there's more money on the line with your mark.

Once you start using a name, you've got protection for it, unless someone else was using it first. Before you decide on a name, spend a little time coming up with a distinctive name, the more arbitrary the better (Apple Computer, for example). Look around to see if anyone else is using the name in the area you want to sell your goods. Be ready to change your name if you need to. It doesn't hurt to check the national trademark register at www.uspto.gov for any national companies who have registered their marks (you don't want to go naming yourself Saddleback Leather Co., because The Saddleback Leather Co. is going to have problems with that, even if you're a small leatherworker in down-home Idaho). You DON'T need a business license or registration to get a trademark, unless your state has some requirement to get state law trademark rights. If you're going to try to sell nationally, it might be worth checking things out with a lawyer to make sure you can get the federal protection you'll want. And don't use the little circle R on anything unless you have a federally registered trademark. Unregistered trademarks use the small caps TM.

I'll try to post some more general info later, but that should give everyone a basic handle on how trademarks work.