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If somebody is using my fictitious name what can I do

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If somebody is using my fictitious name what can I do
Submitted: 6 months ago.Category: Business Law
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Answered in 2 hours by:
12/23/2017
Business Lawyer: KLAW, Attorney replied 6 months ago
KLAW
KLAW, Attorney
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Experience: I have over 20 years of experience in commercial real estate law, finance, consumer credit, landlord tenant, and business law.
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Good morning.
Registration for a "DBA" does not mean that you have the power to exclude someone else from using the name. Most states require registration of a "DBA" for purposes of assuring that members of the public can locate the business owners for the purposes of, inter alia, filing legal claims against them. However, registration of a "DBA" does not mean that you are only entity in your city, state or the country entitled to use the name.The issue here arises not because of your DBA, but because of potential claims that you might have under trademark law. If your name has become associated with your company's goods and services within a specific geographic area, and you are the first company to have begun using the name in this geographic area, then you may have become entitled to common law trademark protection for your name. Common law trademark protection arises from use of your name in commerce, and you become entitled to it when the name (or logo with a name) that you use becomes associated with your company's goods and services in the minds of consumers. Of course, it would have been better if you filed Federal trademark registration, because that give rise to a presumption that you are entitled to use the tradename nationwide for the classes of goods indicated in your registration. But common law trademark rights can sometimes be asserted successfully even without federal registration.However, you can only assert common law trademark rights against this other company if (a) you began to use the name in commerce before the other company, and (b) you can show that the other company's use of the name has created a likelihood of consumer confusion. If the other company began using the name before you and is the senior user, it would be almost impossible for you successfully assert that it should stop using the name (by the way---the date of filing the DBA registration is an insignificant factor in this analysis---what matters is when actual use began in each business). Secondly, if the two companies do not compete in the same geographic area, if they do not compete for the same customers, and if there is no real prospect of consumer confusion, then you probably will not be successful in asserting that it should stop using the name.In most cases such as this, the critical issue is whether there is consumer confusion---are you losing customers because the other company uses this name? If you are not competing in the same geographic vicinity, if you are not providing the same services or selling the same products, or if you are not competing for the same customers, then there is a low probability of consumer confusion and the two companies can probably continue to use the name simultaneously.This issue is complex and if you wish to pursue an action based upon the above, you should consult a local business attorney. I hope this clarifies. Please don’t forget to rate the question. We as attorneys are not employees of Just Answer and are not paid unless you rate the question with stars.
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