Legal Question in Business Law in Massachusetts
dispute over use of business name
Before starting to use a business name (a doing business as) I researched the internet, checked with local chamber of commerce, checked with people in the same industry. No one I checked with heard of my business name. In April I receive a letter informing me that they were operating under this business name for the past ten years. Again, no search even on Google revealed use of this name, even Secretary of State's office. I, on the other hand, have proof that I have operated this business under this name by advertising in the Yellow pages, become a member of the local chamber of commerce, set up a website a year ago and have many local business connections. I write back the guy claiming that he owns my business name. i tell him no one has ever heard of him. I tell him to cease and desist using my business name. Two months go by. I receive a cease and desist letter from his attorney wanting me to stop using the business name. i reply I have superior naming rights having publicly established use of this business name while he had not. Yet he recently incorporated this business name. I am waiting to hear from his lawyer on not stopping use of the name and challanged the cease and desist I sent him months earlier. Who wins?
3 Answers from Attorneys
Re: dispute over use of business name
If he incorporated before you started d/b/a the business name, then you lose. If you were both d/b/a and the dispute is to who was using it first, tat is a fact for a jury to decide. There are many more legal issues and defenses out there besides who is/was first in time which would have to be explored as well before a "who wins" answer can be given... for example, there are probably a twenty unrelated restaurant's called "Sal's Pizza" places in New England but only one McDonald's, so the answer to "who wins" will depend on a little more than who can be found on the internet or the local chamber of commerce (a private organization with no authority to award naming rights).
: dispute over use of business name
First of all you should demand that the person provide all evidence of the use of the name, any registration, and all other factors related thereto.
Without this specific knowledge, one cannot make a decision, DBAs are strange animals, and often are unregistered by their users. If this is the case, this could be a potential problem.
Re: dispute over use of business name
The only place you needed to check, and apparently did not, was the Secretary of State. A corporate name search can be done on its web site in seconds. And reserving it, so it is unavailable to others, costs only a few dollars.
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