Legal Question in Business Law in California

Re: Company Business Name

First of all the use of the name is very tenuous in some instances. Names can be trademarked, trade named federally. Additionally, the use of names can be filed with the county as a fictitious name giving priority to others, both within the county and the state. Additionally, and lastly for this answer, first, first-serve. The test is is the name so similar, given the business you are and also, as to cause someone to be confused and go to the other parties business when they intended to go to yours. You must, taking all of your paperwork, sit down in front of the good business attorney who understands the proper business and professions code sections as to unfair competition and get.proper legal advice.i have been practicing law in this speciality for over 30 years in the san francisco bay area and if you wish to consult with me you can contact me at 925-945-6000.

Re: Company Business Name

Priority of use is not the only factor affecting the right to use a business name. You must also inquire whether the other firm has applied for or received a trademark, and whether the other firm has incorporated. Are you incorporated, and if not, did you file a fictitious business name statement with your county clerk? Also, how far away is the other firm? For example, there may be a dozen "Joe's Bar and Grill" or "Ace Plumbing" in the U.S., and if they are in different states or different parts of the same state, each probably has the right to use the name because the possibility of public confusion is not great enough to make anyone's use unlawful.

If your rights are indeed being infringed, the usual way to start is to send, or have your lawyer send, the other firm a stern and well-researched letter pointing out why you have an exclusive right to that name for that kind of business in that trade area, and demanding that the other firm cease and desist.

Ordinarily, then, there will be a period of negotiation or argument back-and-forth before an actual lawsuit is filed.

Trademark and business name litigation is expensive and usually requires retaining a law firm that specializes in these matters. For this reason, a warning and preliminary negotiation is usually the best way to proceed.

Re: Company Business Name

The answer depends on a number of factors, including (a) how you've protected your mark (is it federally registered with the U.S. Patent & Trademark Office, state registered, or are you just relying on common law rights); (b) how the other company has protected the mark; (c) the type of industry the other company is in (are they a direct competitor, an indirect competitor, or do they operate in a noncompetitive industry); and (d) where the other company operates (in the same geographic area as your customers or in a remote geographic area). Without this information, it's not possible to give advice on who has superior rights to the mark and appropriate remedies to pursue.

Mr. Franchise

Re: Company Business Name

Hire an attorney to negotiate their relinquishment -- it is cheaper. If they don't comply, file suit for the loss of profits.

You may contact me for a consultation.

310 266 4115

Christopher Brainard, Esq.

Re: Company Business Name

I am a trademark lawyer who teaches trademark law to other lawyers and law school students.

My suggestion is to have an attorney write a cease and desist letter. If that does not work, then you could file a lawsuit for trademark infringement, and perhaps dilution and other claims. You could file in federal district court in San Jose, or in the Santa Clara Superior Court.