Someone is using my business name – What can I do?
Owning a business comes with plenty of responsibilities, and achieving success takes time and hard work. Unless you take care to protect your business, you could end up unknowingly compromising the success you’ve built.
If another business is using your name, you are bound to be concerned. Experiencing this can be complicated, and your next move largely depends on whether or not you’ve protected your business name, for instance, by registering a trade mark.
In this article we’ll discuss what you can do if someone is using your business name, how you can protect yourself, and related considerations to safeguard your business.
If another party is using your company name and you’d like legal advice right away, please call our expert team on 020 7315 4801.
What can I do if someone is using my business name?
Your options largely depend on whether or not you have a trade mark. If your business name is registered as a trade mark and another company is using your name, it is considered trade mark infringement. This refers to the illegal use of a trade mark that will potentially mislead, deceive or confuse consumers.
In this case, you can have your solicitor write a ‘cease and desist’ letter to the party who is using your name. Prior to this step you and your solicitor will need to gather any relevant information which demonstrates that the accused party has used your name.
If the issue remains unresolved, you may need to resort to Court action to enforce your sole right to use your company name. Our expert lawyers at Saunders have considerable experience assisting clients with both cease and desist letters and Court action.
If you do not have a trade mark for your business name, the matter becomes slightly more complicated. In this case, you’ll need to attempt to enforce your rights using ‘passing off’ rules.
If another business is using your name, there’s a strong likelihood that your customers will confuse the two of you, which is where ‘passing off’ comes in. Passing off means that a business is falsely representing themselves so that consumers believe that they are receiving the services and goods of an entirely different company (i.e. your business).
Businesses can safeguard their name under ‘passing off’ rules, based on the following factors:
- Goodwill: Meaning that, your business has generated a substantial amount of goodwill, so there is an advantage and benefit to the use of the business’s good name, connections, and reputation, all of which attract customers.
- Misrepresentation: The party has used your business name as and a result consumers believe that they are providing your goods and services, though this is not the case.
- Damage: Your business has experienced, or will likely experience, damage as a result of misrepresentation.
Passing off can be challenging to enforce, which is why it’s important to access the support of expert solicitors.
How do I know if my business name is protected?
If you have registered a trade mark for your business name, you’ll know that it’s protected. If another party uses your trade marked name, this is a form of trade mark infringement, and in the right circumstances, you will be able to take legal action against that party.
How do I protect my business name?
The best way to protect your business name is by registering a trade mark. When you trade mark a business name, you’ll gain exclusive rights to sell and market goods and or services under that trade mark. Trade marks include brand names, business names, words, fonts, logos, and generally cover a combination of these things.
If you have a trade mark for your company name and you’ve discovered that another business is using it, you’ll need to raise a claim against them under trade mark infringement law.
How to check if a business name is taken?
To avoid landing yourself in legal trouble, it is advisable to check whether a business name is taken before you attempt to set up a business under that name.
You can see if a business name is already being used by looking at trade mark databases, such as those stored by the UK Intellectual Property Office. You are best advised to instruct a trade mark attorney to advise you on this, as they can run additional searches to give you peace of mind.
How do I trade mark my business name?
If you’d like to trade mark your business name, you’ll need to send an application to the Intellectual Property Office, providing details of the entity, services, or goods that you would like to trade mark.
The IPO will check your application, ensuring that it is not similar or the same as any trade marks that already exist. They will also publish details of your application, giving other parties the opportunity to raise any issues or oppose it.
If there are any problems, you will have a chance to resolve these. It normally takes around 3-4 months to receive a trade mark. If you need guidance with the processes, our expert solicitors at Saunders can assist you.
What should I do if someone is using my business name?
If someone is using your business name, it’s best to seek legal support. If your business name is trade marked your solicitor will be able to write a ‘cease and desist’ letter to the party who is using your name. In many cases, this action can swiftly resolve trade mark infringement.
If you do not have a registered trade mark for your name, a solicitor can support you to assess your circumstances. In this scenario, you may be able to use ‘passing off’ rules to prevent another party from continuing to use your name.
Your lawyer can help you to build a case by demonstrating the goodwill of your business. They can also help you to gather evidence to show that the concerned party is misrepresenting themselves, and that consumers believe they are providing your services and goods.
Passing off can be tough to prove, however, in these cases, a solicitor can facilitate alternative dispute resolution between you and the party in question.
For example, if someone is using your company name, and you do not have a trade mark, it may be useful to attempt to resolve the matter using mediation processes. This option allows both parties to negotiate and discuss the issue whilst avoiding the cost and formality of Court proceedings.
Can you sue someone for using your business name?
Yes, your business name counts as your intellectual property, and so, if another business is using your name, you can attempt to raise a claim against them.
To do so, you can pursue legal proceedings through the courts, or the Intellectual Property Office. Regardless of the route you choose, it is not advisable to go ahead before receiving independent legal advice. Before you pursue legal proceedings, the Court will usually require you to have attempted alternative dispute resolution.
The Court that handles your case is dependent on the value and complexity of your claim. For example, passing off claims below £10,000 can be dealt with by the Small Claims Court of Intellectual Property Enterprise Court.
Our specialist lawyers at Saunders can offer more information regarding the Court processes should you require it.
How can Saunders help?
If another business is using your name, our solicitors can offer the legal assistance that you need. We have much experience supporting clients who’ve been in this situation, including those who have registered a trade mark, and those without a trade mark.
When you work with us, you’ll benefit from our robust and practical approach. We are able to resolve matters swiftly, and help you to avoid Court processes where possible.