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Question about name trademarks/issues with people using a similar name

Shadera

Shadera

Wayward Python Wet Nurse
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Anyone here trademarked the name they do business under?

I never figured I'd have to worry about it. A search before I chose and went with the name I use turned up no results. No websites, no snake chat, no nothing. I did find a user somewhere with a similar name posting on a small forum after I started using mine, but they had been inactive for about 18 months and didn't look to be returning so I thought nothing of it. An email to them got no reply. People come and go in this hobby.

Fast forward to now. I see someone (person from before) using a name that is similar to the one I use. Do I just find a new name and start over, losing links to feedback threads that use the old name? I'm a bit peeved that a simple spelling change may be allowing this person to profit off my hard work earning my honest reputation. They are suddenly very active in one or two communities and have been mistaken for me on more than one occasion. Do I bite the bullet and trademark the one I use, and then have a lawyer contact the other person and make them change theirs? Or..? I have grown kind of fond of the one I use, and have been using it actively since 2008 with a website and business license.

Help, confused here. What would you do, if it were you.
 
I'll preface my response by stating that my understanding of things may not be wholly accurate.

If the DBA search didn't show anything close, then the person may not have registered the name he/she has been using....but registering a DBA does not mean that somebody else cannot use a similar name. That protection only comes with trademarking the name (and logos); or, to some degree, incorporating.
The point that may cause you problems is if this person was using the name before you. If you trademark, then file suit, and the person can show documentation that they registered their name before you did - I'm not sure what happens. I HAVE seen cases where the newer people were required to stop using the name...but the original "owners" were incorporated and had well established businesses.
 
I'd get your name trademarked. If its so similar that people are mistaking them for you, then its time to claim the name as yours and have a lawyer talk to them. On the down side, they could change a letter of it and still be in their legal boundaries because yours is spelled a certain way that's unique to you. (i believe that's the case, but I'm not 100% sure)

The last thing you should do is find a new name and start over. your reputation is set under the name you're using now.
 
Utta said:
I'd get your name trademarked. If its so similar that people are mistaking them for you, then its time to claim the name as yours and have a lawyer talk to them. On the down side, they could change a letter of it and still be in their legal boundaries because yours is spelled a certain way that's unique to you. (i believe that's the case, but I'm not 100% sure)

The last thing you should do is find a new name and start over. your reputation is set under the name you're using now.
Click to expand...

Yep, it's one single letter. Often if people mispell mine, they're actually spelling his. >.< And that's why it bugs me. They've gotta know I'm out here if they've done a search for their name at any point for any reason.

As far as I know, there was no DBA for them because back when I started using mine I couldn't find any evidence that they had done any business. What a mess. And from looking around, all this isn't too cheap.
 
Shadera said:
Yep, it's one single letter. Often if people mispell mine, they're actually spelling his. >.< And that's why it bugs me. They've gotta know I'm out here if they've done a search for their name at any point for any reason.

As far as I know, there was no DBA for them because back when I started using mine I couldn't find any evidence that they had done any business. What a mess. And from looking around, all this isn't too cheap.
Click to expand...

If you do claim ownership and go threw the legal hoops to "own" it, i don't think that would change anything. If its already a letter off of yours then legally, its 100% different(again, I'm not completely sure on this, but i believe it to be the case). All it would do is protect you from someone trying to completely steal your name.
 
Then I may as well change it completely I think, maybe drop the business name as much as I had gotten attached to it. I just loathe the thought that when they see that name, they think of me for any reason. I busted my hump for what I have - they're new. Off my coattails! Hopefully that's understandable. I found a web page that says they were "founded in 2010", and I've definitely been using mine longer than that. *sigh*

I sent an amicable email with some detail and hope of some sort of a compromise. I guess whatever the answer is will dictate what I do next.
 
Shadera said:
Then I may as well change it completely I think, maybe drop the business name as much as I had gotten attached to it. I just loathe the thought that when they see that name, they think of me for any reason. I busted my hump for what I have - they're new. Off my coattails! Hopefully that's understandable. I found a web page that says they were "founded in 2010", and I've definitely been using mine longer than that. *sigh*

I sent an amicable email with some detail and hope of some sort of a compromise. I guess whatever the answer is will dictate what I do next.
Click to expand...

If people are getting you and them mixed up that much, then i honestly don't know what course you could take.

If you're attached to the name on a personal level, then fight for it. Maybe if they see you're serious about your name, they'll change theirs?

You could also see about owning that name too. Say you own both, if someone uses a search engine, you'll come up both ways. Also, i think you can redirect a website in their name to your website if you own both. However then you might be known as their name instead of yours.
 
Utta said:
I'd get your name trademarked. If its so similar that people are mistaking them for you, then its time to claim the name as yours and have a lawyer talk to them. On the down side, they could change a letter of it and still be in their legal boundaries because yours is spelled a certain way that's unique to you.
Click to expand...

No, the test of a trademark infringement is not the spelling, but whether there is confusion on the part of consumers between the two companies. One cannot, for instance, start selling sodas and call one's product Coca Colla.

One court used the following list to determine whether a trademark infringement had taken place:

Strength of the mark
Proximity of the goods
Similarity of the marks
Evidence of actual confusion
Marketing channels used
Type of goods and the degree of care likely to be exercised by the purchaser
Defendant's intent in selecting the mark
Likelihood of expansion of the product lines

Legal proceedings for trademark issues can be expensive and so you must decide whether you want to go that route. If you have notified the other company and then don't go after them, you may be acquiescing to their use, however.

If you decide to try informally solving the issue (and remembering that an informal solution acquiescing the other company's use may later bar suit):

Talk to the person and see whether some arrangement can be made as far as one party changing names. Or
Develop a trademark symbol that would distinguish your company, maybe a brightly colored snake or lizard or whatever that is displayed each time you use your name. You said in your original post that some confusion exists on a particular forum. If that forum is like this one and you can have an avatar, make your avatar your trademark symbol, the aforementioned brightly colored snake or whatever you choose. You may want to use an unusual font for your company name as well. If it is distinctive, and you use it each and every time your name is used, people should be able to distinguish between the two of you.

I hope it all works out.
 
Thanks Lucille! good to know that information :) (im also out of karma, sorry!)
 
Thank you, Lucille. I appreciate your knowledge and ideas. The name is spelled differently, but it's pronounced exactly the same. It'd be like me calling myself Ralph Daviss Reptiles.

I'm definitely going to get the TM done just for peace of mind when I have the extra cash. I'll make it a priority. I can prove that I've been doing business for several years under that name if need be and have a whole host of logo branded items I use in that business. Although, it won't protect me if this other person turns out to be less than honest in the long run and people don't care to take the time to note that one letter difference in the business name.

I am hoping the email response I get is positive, or at least open to some sort of compromise.
 
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