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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 118655
Experience:  All corporate law, including non-profits and charitable fraternal organizations.
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Two of us are franchisees of a business. I started my business 1st in the state (hawaii) w

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Two of us are franchisees of a business. I started my business 1st in the state (hawaii) which we both operate. However, when I began my name wasn't registered with the state. My business license is dated before the other party registered their name with the state. The name happens to be the same name. I'm a sole-proprietor dba "the business name". The other is a LLC of the "business name". What needs to happen so that I can register my name with the state and not have to alter it. I have been doing business as the said name already. Please advise.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

Registration of a business and name is XXXXX XXXXX of rights to the name. This is a REBUTTABLE presumption and you can prove your rights by proving that you were the first to use the name in commerce and seek to stop the other party from using the name. Proving that you were first to use in commerce can be done by showing that you were operating and conducting business through your records, such as sales receipts, sale tax records etc.

You need to start by sending them a cease and desist letter informing them that their using the same name causes a likelihood of confusion and give them the date you were first to use the name in the state. If they refuse to change their name, then you will need to go to court to sue over the rights to use the name and you will need an attorney at least at that point to pursue them to seek your rights to the name.

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Customer: replied 4 years ago.

So, send them a letter to not use the name and then I can continue to operate. In the event they choose not to stop, then we will have to battle it out in court? So, since we both have the same name, will that affect my business records for the meantime?

Thank you for your response.

Yes, you send them a letter first. That is the first thing even an attorney will do. If they refuse to change their name, you have to battle with them in court.

Them using the same name would not effect your personal business records. It does lend credibility to your argument that it can cause a likelihood of confusion though.
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