This weekend I discovered that someone else has almost the same business name and web address that I do. And they are also in Houston. As I researched it I was at first worried because they claim to have 20 years experience. But then I found that they didn't register their name until just last year and so from a legal standpoint, I've been around longer. I did research the name when I registered and couldn't find anything like it in Houston (I did find someone was using it in Australia). Up until last weekend there hasn't been any problem but I learned about this when I client of theirs contacted me accidently. We are definately in the same industry and competitors (although IMO they are not doing the same thing that I am - but no need to go into that). Has anyone ever encountered this sort of problem before? Can I just ignore it and move on? As a customer, do you think you could get two similarly named businesses confused for each other? I really don't want to take any legal action if I don't have to so I guess I'm fishing for excuses.
I sold my company to Warthog and renamed it Warthog Texas, someone snaked in and bought Warthogtexas.com and then offerered to sell it to me. I simply registered WarthogTX.com and told the guy that he had just wasted his money. I will get Warthog Texas next year when he doesn't renew. DD
I definitely have experience in this area. On the website name, there is nothing you can really do. Similar names do not constitute any real legal issues. The only companies to win suits with website names have been companies had their actual names used (Microsoftxxx.com for example) or people who had their names used (Madonna.com was a good example of that). My guess is that all you have is a DBA in Harris County owning that business name and that isn't enough to force another business to give up their domain name. On the business name itself, with a simple DBA (assumed name), there isn't anything that you can really do. DBA's are non-specific in nature, similar to domain names. The only way you could prevent them from using it is if you could show in court that their use of that name is directly impacting your business adversely AND that they knew it. I remember reading about something like this a few years back and a company was able to prove that another company with a similar name was usurping their business through the name. Now, one thing you might be able to do is incorporate. There is a law in the state of Texas that is true in many states that requires that any business name taken by anyone not be "deceptively similar" to any other currently incorporated name in the state. Of course, you can always register that name in another state, but since you are primarily doing business here, that is your main issue. Once you have your name incorporated, you may have legal remedies against them for using a similar DBA but you would definitely need to consult an attorney about that. One case that may be of interest is the case of a "Victor's Secret" lingerie store that was sued by Victoria's Secret. Victoria's was unable to prove that a reasonable consumer would be confused into believing Victor's was the same as Victoria's so the judge ruled in favor of Victor's. Of course, EVERYONE knows Victoria's Secret, so they had a lot further to go to prove their point. In your case, with a rival business in one location (Houston, in this case), you may have a better chance of forcing them out from under the name. Best of luck.
You might try contacting an attorney who has dealt with this issue before...not that I'm mentioning names or anything.
Jeff, Thanks for your reply, it clears a lot up. It looks like this is a case of two companies only using DBAs. I'm not worried about the web presence they have but I am worried that they seem to have put a bit more money into getting their cakes and name out there. The biggest concern I have is that I occasionally run into people who tell me they tried my cake at an event I didn't do. And I get the impression that theirs isn't a great reflection on my business. I saw the Victor's Secret case and have to agree that people aren't going to mistake the two. But the problem I had last weekend was that up until I met with the client and began the cake tasting, they thought I was with the other company. The mistake was sorted out but still...
Mrs. V - Business name conflicts can be complicated, so I will start this post with a disclaimer that you should strongly consider consulting an attorney, and the following advice is fairly generic (there are always exceptions to every rule). Regardless of who registered the name first (meaning filing a dba in this case), the party using the name first typically will have priority. However, if you ever get in a dispute with the other business over the rights to the name, having a registered trademark will help. You can register your trademark federally with the Patent and Trademark Office or just in Texas. If you are only conducting business in Texas and expect that to continue to be the case, the Texas registration process is very simple and easy. Not to disagree with Jeff, but whether or not you are incorporated makes no difference in this case. Since there is some confusion between the companies existing, and you are concerned about the quality/reputation of your competitor, you may wish to have an attorney send a cease and desist letter to the other company (assuming you are sure you have been using the name longer). This can trigger a bigger dispute, however, and should only be done after careful consideration of the various issues. Failure to send a cease and desist letter, however, could ultimately result in your losing your rights for failure to assert them in a timely manner (as in the NBA and their claim to the "Clutchcity" trademark, but that is another story). Good luck. Pipe
I wouldn't worry about it too much. I think you have entirely different clienteles. Going by pictures alone, I'd expect to see her creations served in some of the finest double-wides. Yours are truly gorgeous.
