Legal Question in Business Law in California

Re: ficticious business name statement

If the person filed using your name, then you have a great case for traemark infringement. Basically, the person took the name to use your goodwill to perpetrate fraud on the public (making the public think this person is your organization).

I would retain counsel to look over what you have and proceed from there.

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Re: ficticious business name statement

The way to challenge the unfair or possibly illegal use of your trademark (or business name with trademark-like properties) is not to attack the infringer's fictitious business name filing, any more than it would be proper or useful to sue the telephone company for listing the name with the infringer's phone number and yellow pages ad.

Instead, you go after the infringer directly. Things like fictitious name filings, phone book listings, the printer who prints their stationery, etc. are all just evidence of, or witnesses to, the infringement.

I'm not saying you have a good case, nor am I saying you have a weak case, against this former member. What I'm pointing out is that the county clerk, in accepting this guy's fictitious business name filing, it NOT ruling on, or otherwise acknowledging, the person's right to make the filing. The clerk is merely carrying out a non-discretionary, ministerial act: filing papers delivered for filing.

Your rights to the name, if any, can be enforced by bringing an infringement action before the appropriate court. If the organization has obtained federal trademark protection, suit should probably be brought in the U. S. District Court. Otherwise, your case is weaker and must rely on California and common-law rights, and will have to be brought in (California) Superior Court.

The challenge will be based not on improper filing of a document, but on improper use of a name belonging to another entity. Ask a trademark attorney for preocedural and filing particulars.