Someone Is Using My Name!!

Business By trulyscrumptious Updated 22 Feb 2009 , 7:43pm by lostincake

trulyscrumptious Posted 17 Feb 2009 , 8:33pm
post #1 of 17

Dear CC'ers I am in complete shock and need of your advice!

This morning I got a call from my grandmother who was in a panic. She had picked up the county newspaper and in the local/food section she was reading about a local chocolate festival that was recently held in our area. One of the articles was telling about a licenced home baker (like myself) that had participated. They gave the name of the business- it's the same as mine!!! icon_eek.gificon_eek.gif
I have been using the name "XX" for 5 years now since I graduated from Culinary school and began working from my home. I have been state licenced for 3 years! From what I can gather from the article this woman has only been doing this for the past 2-3 years.

When I finally calmed down (some) I called the state and asked them about whether or not I *need* to register my business name with someone; I was told that for me as a home bakery it's not required but it is an option that is available to me- it wouldn't however, necessarly prevent someone from using the same name- I would have to check with that Dept. etc...
I'm just so mad icon_evil.gif and upset icon_cry.gif right now that I don't know what to do! I know I will prob need to contact this woman but I am dreading doing so for a multiple of reasons - one of which being I think she'll get a lawyer involved and as much as I like my name, I have neither the money, time or inclination to get into a legal battle with her. I would rather give up my current name and go through the process of registering a new one with the state that I know nobody has.

Please Advise!!

16 replies
chutzpah Posted 17 Feb 2009 , 8:34pm
post #2 of 17

No way... register your name ASAP and then get YOUR lawyer on her @$$

costumeczar Posted 17 Feb 2009 , 8:38pm
post #3 of 17

If you've been doing this longer than she has in your area, register the name, call her and tell her to change it or your lawyer will be in touch with her. The only problem you're going to have is if she's registered it first. I'm surprised that they said registering it won't prevent someone from using it. When you register a business here you have to make sure that nobody else is using the name, or you have to get a different name.

I just registered as an LLC, and the state had to do a search to make sure my business name wasn't in use already, so they do look to make sure there's no overlap. Maybe you could do that.

Kiddiekakes Posted 17 Feb 2009 , 8:45pm
post #4 of 17

That is weird because here in Canada you have to do a business name search in your province/state to see if that name is taken..If it have to choose something else! If you have had the name longer I would register it ASAP and then phone/email the other woman and kindly ask her to change her name you have already registered the name..If she has you will probably have to change your name to something else! Good Luck!!

Jenn2179 Posted 17 Feb 2009 , 8:55pm
post #5 of 17

In NC you have to register your name and before you can register you need to make sure no one else has that name.

Katie-Bug Posted 17 Feb 2009 , 8:57pm
post #6 of 17

The lady that I used to work for has someone else using the same name. Patty, the lady I worked for, has had this name for many years, this other person has only had it a few years.

When Patty checked with a lawyer she was told the name was her's since she had had it the longest and could prove it. She has been operating as a business under this name since the 80's. The other lady contacted her trying to foce her to change it, that's what made her contact the lawyer.

Hope it works out for ya!! icon_smile.gif

dmich Posted 17 Feb 2009 , 8:57pm
post #7 of 17

I was recently looking at setting up an LL here in Utah and I had to do a business name search to make sure the name was not already taken. I think that's pretty standard procedure. Definitely look in to it and register as quickly as you can. Good luck!

dmich Posted 17 Feb 2009 , 8:58pm
post #8 of 17

Whoops, I meant an LLC, not an LL. icon_rolleyes.gif

indydebi Posted 17 Feb 2009 , 9:24pm
post #9 of 17

I would contact an attorney BEFORE you register the name. If you register it TODAY, it could impact your argument that you've had it for X number of years. Let an attorney figure out how to backdate it, if that's what's needed. Don't go ahead and do ANYTHING before contacting an attorney.

Martha Stewart said (you might have heard of her ... multi-BILLIONaire chick? icon_lol.gificon_lol.gif ) "If you think you are saving money by NOT having an attorney at the beginning, you'll pay for it at the end."

cookie_fun Posted 17 Feb 2009 , 9:25pm
post #10 of 17

If you register as an LLC or a CORP then your name cannot be used by anyone else in the state, but if you are an individual with a DBA (doing business as) name, then you can register it with your county, but there really isn't a "protection" for you.
I worked in commerical property/liability insurance for 7 years.
That being said, a lawyer could certainly spin the angle though, and most laypeople don't know what the rules are.
Also, to the OP, do you think this other business is aware of you and that you have been using the business name?

LisaR64 Posted 17 Feb 2009 , 10:35pm
post #11 of 17

I agree with sweetgreetings-il. Here in PA, a corp or LLC guarantees exclusive use of your name, but just registering the name does not. Registering the name only guarantees you the right to use the court system for matters relating to your business. You are not required to register your business name in PA, but if you don't, you may not use the court system to resolve any issue related to your business.

cakesdivine Posted 17 Feb 2009 , 11:45pm
post #12 of 17
Originally Posted by indydebi

I would contact an attorney BEFORE you register the name. If you register it TODAY, it could impact your argument that you've had it for X number of years. Let an attorney figure out how to backdate it, if that's what's needed. Don't go ahead and do ANYTHING before contacting an attorney.

Martha Stewart said (you might have heard of her ... multi-BILLIONaire chick? icon_lol.gificon_lol.gif ) "If you think you are saving money by NOT having an attorney at the beginning, you'll pay for it at the end."

I agree with indydebi. I do have a question for you. Do your clients pay you with checks? and if so do they make it out to your biz name or your personal name? The reason I ask is because a bank cannot open a biz account for you unless you have a registered DBA in your county/parish, nor can they deposit into a personal account a check written to your biz, therefore if you do have a biz account then you had to have registered your name (DBA) . One thing I did learn is that Yes you can take them to court even if their name is similar, if you can prove confusion (I know this because I testified in a case for a lady who owned a cheer and gymnastics gym and another gym opened with a very similar name in the same city. It created a big problem at a state level gym meet, and so she sued and she won, they even had to pay her damages and her lawyer's fee.)

Now once you speak with a lawyer he/she should advise as to obtaining a DBA, but if this person opened and did obtain the DBA in your county you might not have a leg to stand on. I also learned years ago that when doing a DBA search if there is even one character different (ie: my name is Cakes Divine, but if someone put in Cake Divine without the "s" they could obtain a DBA in the same county as the computer would not recognize it as a duplicate entry, or if someone made it one whole word instead of 2, same scenario) they can obtain a DBA with the same or similar name. In that case if you are in the same business (that is very important) you can sue for name infringement. A person in a totally different business couldn't sue however by using the same name (ie: A Cut Above Steak House, or A Cut Above Salon - even if they don't use the clarifying business title they are in two different industries so they are out of luck, unless one of them has trademarked the name, in that instance the person holding the trademark will win regardless of how long someone may have been using that name.)

margaretb Posted 19 Feb 2009 , 7:26am
post #13 of 17

For what it's worth -- my husband is a welder, and we incorporated our welding business about 10 years ago in Alberta. Part of the documents we had to submit was a name search, which I recall as being 3 or 5 pages or so of every name that was similar (e.g. it had any one of the words we used in our name). Once we incorporated, that was our name. However, some time ago I learned that if you incorporate provincially, you are trumped by anyone who incorporates federally and wants the name, even if you had incorporated first.

cylstrial Posted 20 Feb 2009 , 1:50pm
post #14 of 17

Don't just give up your name! That's not fair to you or your customers. Just go talk to a lawyer!

Ladyfish74 Posted 22 Feb 2009 , 7:10pm
post #15 of 17

You definitely need to do something fast. Either fight for the use of the name or change it and trademark it or license it....whatever you need to do. The fact that the name is a familiar one with so many people doesn't help. Remember? Truly Scrumptious was the name of the leading lady in "Chitty-Chitty-Bang-Bang". There are a lot of people out there familiar with that name. I even thought of using it for my business at one time. Do something (in a legal sense) quickly before you have another "Truly Scrumptious" you have to deal with. If you have a lot of blue sky built up already, I would fight. It's a very expensive process to make everyone you have done business with (and everyone they've talked about you to) aware that your name has changed. Good Luck! ouch.gif

lostincake Posted 22 Feb 2009 , 7:40pm
post #16 of 17

My parents used to own a jewellery boutique and our name had been incorporated as "xxx's Jewellery Inc." but another business was using it (unrelated to jewellery) as "xxx Inc." and they had their lawyer contact us citing infringement on their corporate name.

Although we were allowed to incorporate it with the government, they still won the right to that name although ours was not exactly the same and we had to change it.

My parents had used it for over 10 years at that point but had only incorporated it the last 3 years. The name search came up clear hence why we were allowed to incorporate it but in the end we were still forced to change it since it was registered first with that company.

You need to register your name but like debi says, contact a lawyer first to see what your best options are. They will know what the legal ramifications are. The other person may have already registered, licenced or incorporated the name so don't assume because you used it first that that imparts any rights to the user. It certainly didn't matter in my parents' case.

lostincake Posted 22 Feb 2009 , 7:43pm
post #17 of 17

Oh yeah...forgot to mention the other business had the name incorporated before we incorporated ours but only for 1 year more than us - so we had been using it first for 6 years before this other company.

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