Can Two Businesses Have the Same Name?

If another company registered its business name as a trademark, using the same business name is illegal. If another company registered its business name as an entity, you may not use the same business name.

Author: Douglas Wade, Attorney

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As a small business owner, the way in which your company is structured impacts the legal right you have over your company. This includes the name you chose for your business.

Here is where it gets a little more complex: did you register the name of your business as a partnership or perhaps sole proprietorship? If this is true, then you can utilize the benefits that come with being the owner of your company. However, you do not enjoy any protection over the name of your business. In this case, there can exist companies with duplicate names, and it is entirely lawful. Therefore, there can be no claims made regarding trademark infringement.

Importantly, if your company’s name is identical to the name of an incorporated business, they may have the ability to dispute this legally and might very well challenge your use of the company name you have chosen. Does this make sense? Let’s keep moving through this interesting debate.

In this article, we will discuss the following:

1. Can two business have similar or same name?

2. How do I know if I can use a business name or not?

3. How do I protect my business name so other companies cannot use the same name?

4. Should domain names also be protected?

5. Another company is disputing my name and has threatened legal action. What do I do?

What happens if a business name is too similar? A likelihood of confusion exists between two businesses with the same or similar business name. The aim of having a distinct business name is to prevent consumer confusion.

Can two business have similar or same name?

If the business name is not trademark, two business may have similar or same name if certain conditions are satisfied. Picture this: you’ve thought of the ideal name, but you are concerned about the issue of your business using the same name as another small business. What if it is a company you have never heard of before? You do not want to commit too much time to research names since you have so many other things on your plate.

Our solution here is this: consider your potential consumers. Problems that arise concerning business names usually contribute to consumer confusion, and this is something you do not want to do. One of the main goals in naming your business is to create something unique, original, and memorable. If consumers are constantly confusing your name with another, this will translate to loss of sales and overall business success. When a different business has the same name as your business, it can be a headache.

There may be an exception here, however: if you do find another company with the same name—or a similar one—but you run your businesses in different industries, well, there may be no overlap. If you do not think your customers will be confused, then you might be able to proceed with your beloved name after all.

Here’s an example: perhaps your company is in the technological field, and you produce computer software for the military. However, there is a company with a very similar name, and their products are found in the grocery store: cereal. Here, the overlap would be low since one company is in a highly specialized and technical field, and the other is located in something as general as your local market.

Now, if these companies were both in the computer software industry, there is no doubt that there would be a problem.

An additional aspect to consider here is known as the “rule of naming first” or “first name.” This means that if your company used the chosen name first, then you may have the legal right to argue that you own it. If you have trademarked the name before the other business, this will also work in your favor. So, we recommend trademarking your name whenever you are ready to commit to it; more on that in a bit.

Overall, though, we suggest this: be wary of replicating another company’s name. It can only lead to problems, and these are headaches that you probably do not want to deal with.

How do I know if I can use a business name or not?

The easiest way to check if another business is already using the same name is do a Google company name lookup. Second, go to the United States Trademark Office and perform a business name trademark search.

Finally, depending on the state you have incorporated in, a state agency is tasked with the filing of business entities. You should be able to find this website easily. In California, it can be found through the website for the Secretary of State.

You should also be able to find an online tool for checking incorporated business names for your state. This tool will be helpful as you try to figure out if there are other businesses with the same name.

Tip: You will also want to do some “DBA” research. DBA simply means “doing business as,”—but why is this important to you? Well, some businesses have been approved to operate under a name different than the business’ legal name. This is sometimes known as “operating under a fictitious name.”

Now that you are aware of the proper channels you can use, you can do your best to make sure that your name is original and unique. If you need to change your name, dealing with it now is much better than dealing with it later.

How do I protect my business name so other companies cannot use the same name?

First, incorporate your business in your state. This will place your name into the respective systems and provide a legal claim to the name that you will be able to prove and defend.

Second, you may want to apply for a business name trademark with the USPTO. When you register in this way, your business name will be registered with the United States Office for Trademarks and Patents; also known as the USPTO. You can also use the database that the USPTO offers to search for business names that are the same as your own.

However, a business name that is trademarked can be problematic if this company name is too similar to the name of your company. It can also be a problem if it has been registered in a similar industry. If you find a company like this and are worried that you may be in violation of another company’s trademark, then it may make sense to change your name or speak with a lawyer.

You can also complete trademark registration. This will provide your company with the right to sue for trademark infringement in your state or even federally if this occurs later in your business career.

All in all, we suggest you make sure that you are incorporated if you’ve chosen to do so and also make sure that your trademarks are all set. Fill out the correct documents and paperwork, conduct your research, and do all the work necessary to defend your brand. Protecting your brand will prove useful over the entire life of your business.

Should domain names also be protected?

The short answer is: absolutely. Your company’s domain names are essential in registering, trademarking, and protecting your brand. This type of protection, across all angles, is paramount for a small business owner.

Keeping your domain name and hosting your website has become essential in business. At this point, there is a wide range of businesses out there, small and large, and many of these companies conduct their operations exclusively online. Many also maintain and cultivate a strong brand image and presence using social media, personal websites, and other tools.

You will be happy to know that similar trademark laws exist to protect your domains, just as they do for your business name or name.

How do you protect a domain name?

Purchase the domain name
Develop a sleek, comprehensive, but easy-to-use website
Make sure to utilize your domain name in all marketing activity

If you take these steps, your domain will be embedded in your business, and no other company will consider using it. Can you check out the domain situation of Amazon.com?

Another company is disputing my name and has threatened legal action. What do I do?

You have done all your due diligence and worked diligently to trademark and protect your company and its new name.

But suddenly, a new business is using your name, trademark, logo, or domain name—or all these things. What do you do?

First, stay calm. This has happened to many business owners before and will happen again. It would be helpful to speak to a lawyer, but here is what we recommend initially:

Immediately send the rival company a cease/desist letter. This will serve as an initial warning and show you know of trademark laws. In this letter, clearly state that you would prefer if this company immediately stopped using your name. Suppose you’d like to consult with a lawyer regarding how to format this letter.
If you do not receive a response, or you do not receive any formal response or one you or your lawyers or co-owners deem appropriate, you may need to take more extensive legal action. This action will no doubt show how the other business’ actions have negatively impacted your business.
Ideally, you can secure damages from this issue. This is dependent on precisely what occurred, of course.

When two businesses have the same name, it can be problematic, but solutions exist. We hope you feel informed, prepared, aware, and ready to get to work. If you have any other questions about naming your business in California, please contact our Los Angeles business litigation attorneys at Nakase Wade.

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