What Would You Do? Newcomer Uses a Colleague’s Business Name

So here’s a sticky situation that is occurring more and more often:

A newcomer to the industry enters the scene and proudly announces her new business name and tagline to the world. Problem is, it is identical or nearly identical to the business name and/or tagline of an established colleague.

Your business name and tagline is part of your brand identity, which is an important and valuable intellectual asset.

It helps creates a unique and distinctive identity of your business in the marketplace. It helps facilitate brand awareness, differentiation and word-of mouth advertising for your business.

When someone copies your name or tagline or uses a derivative, it creates confusion and unfair competition.

While registering your tradename affords you the greatest legal rights and recourse, it is not required and it’s not the only way to exercise your rights and protect your turf. There are common law protections as well that protect intellectual property owners.

The law does require, however, that you actively protect your trade name (business name), trademarks, servicemarks, etc., (e.g., taglines) or you lose the rights to lay claim to them.

What that means is you must go after those who infringe upon your business name, tagline and other trademark property or you lose right to them. And if you are serious about your business (it’s your livelihood after all), that’s not something you take lightly. It, therefore, becomes necessary for you to keep a vigilant eye open for infringements of this nature.  The eyes and ears of your colleagues are often very helpful in this effort.

Which also means you do not want to be the newcomer who is doing the infringing on someone else’s tradename and/or other intellectual property. You can be easily sued and held liable and ordered to pay thousands of dollars, on top of having to start all over from scratch.

Do you really have the time, money, energy and resources to fight a costly legal battle in another state or even country with someone who has every right to go after you and protect their intellectual property and very important business interests? And if you don’t have the money to defend yourself, they can win by default judgment.

Stealing from others and engaging in the unethical practice of infringing on the tradename/trademark/intellectual property of others is a no-win situation.

But forget legalities for the moment.

Let’s look at this from a moral and ethical standpoint.

Sometimes this is difficult, but it becomes less so when you first ask yourself the question: “How would I feel if this happened to me.”

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SO WHAT DO YOU THINK?
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  1. Would you be upset if someone new to the industry started using your business name? Why or why not?
  2. If you saw someone new using a colleague’s business name, tagline/slogan or other brand identity, would you say something to that newcomer? Why or why not?
  3. Would you let a colleague know if you saw someone new using their established business name, etc., a close enough derivative of it to be confusing? Why or why not?

9 Responses

  1. Jenni Scoggins says:

    Yes, yes and yes.

    I’m presently going through my due diligence regarding a business name and assume those that have come before me have done the same. It’s hard but necessary work and I would expect the same from those that follow.

    I just nixed my third name. I don’t know if this is the appropriate place to go into why (beyond the above reasons, and there are other reasons), but maybe Danielle, you could write a piece about “How to come up with a name”. Maybe you already have and I just haven’t read it yet. You’ve got a lot out there girl! Thanks for that!

  2. Yes, I’d be upset, and the reason I know this is because there are several people out there with what I think is a derivative of my business name, and I’ve done nothing about it. I’ve done nothing about it because I’m not sure their business name could be considered a derivative of my business name. When I’m uncertain about something, I prefer to not raise a fuss.

    If I saw a new person using a business name that belonged to a colleague, I’d probably tell the colleague rather than the infringer.

  3. Wendy says:

    Hi Danielle.

    As I am in this situation myself I can say, yes I am annoyed. Why not angry you are perhaps asking? Well I’m really am not surprised it happened. I think it’s naive not to expect it. There are only so many variations on the VA phrase and its inevitable I think that there will be derivatives, if not a duplication of actual business names themselves. We are talking the world over here and within that there are different states, provinces, countries that all have their name registration guidelines, within their own region. The business name search guidelines are only for each region for duplication, not for the whole world. Also, with businesses registering as domain names with various available domain extensions (and more on the way) there are bound to be duplications from that corner as well.

    I hear what you are saying and agree business owners need to protect their trademarks and copyrights but I think for business names, as they are being used from within different states/provinces/countries, there is separation, even if they are internet businesses. Also, the separation that distinguishes you from another business of the same name can come in many forms be it your personal name, the type of services you provide, your website (content/look/colors, etc.) and in those ways it is apparent to anyone who looks that your business is not the same as someone elses.

    Also, for this reason, I think the single most important thing you can do for your business, especially an online business such as VA, is in addition to registering your business name is to obtain the .com version of your business name first, and your country extension secondary. I know many businesses don’t but that’s just my opinion. It solves many of the duplication problems as owning the .com extension then you, and you alone, control that business name on the WWW.

    And lastly, I have tended to focus too much on what others were doing and found it was not moving me forward as I wanted. I was spending too much time checking out what the same name business or’competition’ was up to and who was doing what so that instead of being ‘proactive’ in moving my business forward I was being ‘reactive’ to what was going on around me. Not a good place to be. So I have made the decision to concentrate and focus on my niche and my business and on what I have to offer and how to best serve clients rather than what others are up to.

    So IMO, basically I think being protective about your name is a losing battle and the word here is battle as that is what it will be. And who wants a constant battle. Yes, we should protect trademarks and copyrighted material – for sure. But, as for the (non-trademark) business name, well I think the best use of the time and energy it takes to fight over a name can be better spent setting our businesses apart from the duplicates by providing clients with each of our own unique personalities and services. Thanks. 🙂

  4. Wendy says:

    Note to self: 1) work on brevity; 2) don’t comment in a rush or late at night! 😀

    If I may briefly, just modify the last line of my comment above,
    “…setting our businesses apart from other same name businesses through branding & services, in addition to each VA’s unique personality, work ethic & style.

  5. Nah, no need to work on brevity here. 🙂

    It’s good to explore and put some critical thinking to things. Sometimes that takes more than just a few words. Don’t cut corners on your thought process–it’s valued and appreciated here.

    I think those are some good thoughts. It’s definitely important to make sure our time and energy is well-spent.

    I just want to make sure that you and others know that it’s not fruitless or wasteful energy to protect your brand. The law also requires you to, if you want to keep those things. Because failing to do so, you could lose them to someone new, who could then turn around and tell YOU you can’t use them. How would that sit with you?

    While it may be naive to think that people aren’t going to duplicate, it’s nonetheless true that companies have very real rights and resources.

    I want to make sure everyone understands that those who do wish to protect their trade name rights should not be held up or dismissed as being petty or wasting their energy. If the business and name they’ve invested in is very important to them (and everyone should assume it will be if they don’t want to get sued), that’s just as valid a position as the position to do nothing.

    I’m not trying to change your mind, just making an observation. From my perspective, it would seem that your position comes from a place of defeat, at least in some part. It comes across as “Yeah, it bothers me, but I can’t do anything about it.”

    What if people in our industry were held some standards and expectations of doing unto others, or at least adhering to what exists in the law?

    What if industry leaders and organizations upheld those standards? What if they refused to condone or perpetuate infringements upon their sisters and brothers by saying “no” to those folks who engage in known infringements?

    Plus, if we don’t pay attention to these things, if we don’t raise the consciousness of newcomers and educate them about these things they may truly be ignorant about, not only will the practice be perpetuated, but they also then open themselves up to legal liabilities and possibly being sued by someone who does take their business and their tradename rights very seriously.

    So it doesn’t do them any good as well by allowing them to remain ignorant of these things. Ignorance of the law is not a defense and it could be a very costly lesson otherwise.

    As an example, here is a someone who infringed upon a national temp agency’s tradename: http://www.lessig.org/blog/archives/untitled.txt

    Who knows how things would have worked out if that person had had the money to hire an attorney to defend herself or or if the case had actually gone to Court. But in this case, she didn’t have the financial means to defend against the action and now owes thousands based on simple default judgment.

    The best thing, the right thing, for all parties is to simply not infringe in the first place.

    Do like Jenni is doing and engage in your due diligence. Check federal Trademark office registers. Check industry directories. Do name searches on various search engines. Search under variations of the name. Once you do hit upon one that you have every reason to believe is free and clear to use, then be sure and buy up all the domain extensions and even variations of the domain name to protect your own interests.

    Of course, it will become more and more difficult for new folks to come up with original names, but that doesn’t negate the fact that it is the rightful and lawful requirement for them to do that.

  6. Vicki says:

    I am actually in the process of looking for a new name, as too many companies, not just VA’s, have the same or close name. I have Googled the names, checked county and state records, and checked the Trademark and Patent Office. Once I settle on a name, I will trademark it. It is $350 per trademark. (name & logo are 2 trademarks) This way, I will have the legal rights to that name, and can enforce it on people who decide to use it.

  7. Hi Vicki 🙂

    Here’s what people don’t seem to understand: You have the legal rights whether you register your trade names and marks or not. You don’t have to register anything in order for those rights to exist. Registering your trade marks just adds another level of recourse. People who have not officially registered their marks can still go after anyone who infringes upon them.

  8. Tiffiny says:

    Danielle, you always have such great advise! It is very difficult coming up with a name! I have been working on it for over a month. I finally found one that I really liked jumped on GoDaddy and it was available so I took it, without researching it further. Big mistake! After I researched the name (outside of GoDaddy) I found many businesses using very similar names. Ugh! Luckily I was still in the cancelation window so I was able to cancel that domain. Now I am back at square one with coming up with a name. But I know in the long run it will be best. I wouldn’t want anyone to use my name (or similar name) so I feel I should not do that as well. It’s called respect.

  9. Yessss, Tiffiny! Good on you. 🙂

    Domains are cheap so even if you weren’t able to get out of it, you can always purchase another (or several) and let that old one expire at the end of a year.

    I’m going to suggest keeping in mind that there’s no rush here. (And rushing into business is never a good idea). Take your time. It’s no small matter and you’ll be grateful for taking smart steps and processing things in due time rather than rushing the process and making mistakes you’ll regret.

    And here’s something else that will help you immensely: Instead of focusing on the biz name right now, there is a lot of other foundation work and set-up that in the process of getting in place will actually help you come up with a name. It’s the exercise of going through those steps that will help you see the big picture through a client’s eyes and give you a whole other creative angle that will be bubbling below the surface all the while.

    Try it and see! Pretend you already have a biz name and website, then go about putting the other foundation and education pieces in place, and I’ll bet that somewhere in that process (and letting things simmer and cook in their proper time), the perfect name will come to you.

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