I have just started a business, now another business with a similar name has said I can't use my business name? Is this correct?

[cazzie15]

I only started my business 2 weeks ago - I do dog daycare. Before I named it I did a number of google searches and found no other businesses locally with the same name. I have now been contacted by someone with a business with a similar name who does dog walking not daycare. She has now informed me that I need to change my name. I have website, email, marketing etc is this legal?

[ummmm]

How similar?

[coccinelle]

If you declared your business then surely they would have told you if you could use that name or not.

[Zeuhl]

She would have to take you to court of course.

There is no copyright as such on the business name unless it is a registered trademark but if she could persuade a court that customers could be confused into using you when they really intended using her service she would have a case (passing off)

[chrissa1]

Is she or you registered at Companies House?

[Zeuhl]

Elements of Passing Off

(There is more on wikipedia)

These are:

1) Goodwill owned by a trader

2) Misrepresentation

3) Damage to goodwill

Plaintiffs have the burden of proving goodwill in its goods/services, get-up of goods, brand, mark and/or itself per se.

The Plaintiff also has the burden of proof to show false representation (intentional or otherwise) to the public to have them believe that goods/services of Defendant are that of the Plaintiff; thus, there must be some connection between Plaintiff’s and Defendant’s goods/services/trade. They must show likelihood and/or actual deception/confusion in the public.

[cazzie15]

The other business only does dog walking and states on her website that she is limited to certain areas. I primarily do dog daycare and mainly cover an area seperate to theirs. Her website name incorporates dog walking mine does not. I am not sure whether it is legal to stop me trading.....neither business is registered or trademarked

[RATTER15]

I dont think she can stop you using the name unless it has been registered to be honest.

[ChuckFickens]

So....

If you do day care, and they do walking.....

You're not strictly speaking a clash.... why not try and agree with them that you'll pass on any enquiries that are more their thing if they do the same?

[chrissa1]

You can check here to see if she has registered the name.

http://wck2.companies...ame=accessCompanyInfo

[Bambiagain]

Zeuhl is right. This is a trademark issue. If the other person has registered their name as a trademark (unlikely, but still possible) then you will have to back down. Strictly speaking, trademarks can be duplicated if the businesses are distinct from each other, but if you both do some sort of dog care (even if not exactly the same) then there is a potential clash. Again, it also depends on how near you are to each other geographically - if the other end of the country, there should be no problem, but if within a reasonably accessible distance for someone wanting the service, there is again a clash. Many people running small businesses do not register their names as a trade mark due to the cost (not astonomical, but significant if the budget is small).

If the name is not registered, then it can still be claimed to belong to the other person if they have used it for a reasonable length of time (I forget the exact times, sorry). The rules can be found on this website: www.ipo.gov.uk/tm.htm. Zeuhl's point about goodwill is the issue here.

[cazzie15]

Thanks folks. I think my best port of call is a little visit to a lawyer tomorrow. I've had a look at the gov. IP site and it has no facility for dog daycare or walking companies to be trademarked, so........fingers crossed x

[chrissa1]

Is she threatening legal action? Lawyers are expensive.

[santhan]

Absolutely legal. You can continue your business with the name what actually you have right now.