Legal Question in Business Law in California

Ownership of a business name is kind of a fuzzy concept, somewhat (but not exactly) like "ownership" of your personal name. There are some things one can do to protect his or her use of a business name:

(1) Perhaps the most obvious is to trademark the name. However, not all business names can be trademarked, and obtaining a federally-registered trademark is a somewhat time-consuming project that requires proof of use in interstate commerce, or at least an intent to do so. You can look up the requirements at www.uspto.gov or buy a self-help law book from Nolo Press or a similar paperback publisher.

(2) Forming a corporation or perhaps an LLC with the chosen business name provides a measure of protection from copycats. It is far from perfect and operating as a corporation entails other responsibilities and costs for the owner - but also has additional benefits. For many businesses, this is about as far as they go in name protection.

(3) There is some trademark or business-name protection that flows automatically from setting up and using a business under a certain distinctive name, even when the owner takes no special protective measures. If I open a restaurant and call it "Piacere," I can probably sue anyone, and win, who opens a restaurant of the same name ten miles away. My suit would be based on common-law principles, bolstered by provisions of the Business & Professions Code relating to unfair business practices, see, e.g., sections 17200 and 17500.

(4) Additionally, there is a requirement in the B&P Code (sections 17900 et seq.) that any business conducted under a "fictitious" name must file a statement with the county clerk regarding who is using the name. (A corporation's legal name is not "fictitious" under the statute, nor is an individual's own name). Filing (if required) is important to protect and maintain the legal rights of the business, but does not really "protect" the name from infringement to any significant extent.

Please see my detailed explanation on my Blog at:

http://bealbusinesslaw.blogspot.com/2010/02/do-i-need-to-file-fictitious-business.html