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“What am I to do?” asked the business owner who’d contacted us.  “I’ve spent years building my business, and now some guy is using the same business name that I am trading as, within the same location where I am trading.  He’s stealing my good reputation, customers & ideas.”  I could almost hear our enquirer’s frustration coming through the email. 

And a frustrating situation it is indeed, but fortunately one that had a solution.  I told this business owner what can be done, and I’ll tell you in a moment too.  His story got me thinking though, and it, as well as others we’ve been told by clients at duly noted^®, make it only too sadly evident this problem is not isolated.  In fact, thinking about this person’s situation reminded me of another like it I personally encountered ten years ago, back before duly noted^® was a glimmer in my eye.  It was a valuable lesson, and I thought it worth sharing with you. 

I was among the administrative staff of a computing agency that sourced IT consultants to third party clients.  The sector was booming at the time; IT consultants got paid ridiculously well, and not just the basic salary of £60k – £70K (yes, ten years ago!)  You should have seen some of the other benefits they could get on top their basic.  It did make me wonder whether I should jack in any ideas of a creative career and just become an IT geek!  So imagine the commission the agency would get when they placed a consultant. 

As this was a small company with few staff it’s no surprise we all soon found out on the grapevine that the director had received a letter from a law firm, stating that her company’s name – my employer – was using exactly the same trading name as a third party company also trading in the same industry sector.  In fact, receiving that letter got my boss in a real flap. 

Now stop for a moment and put yourself in the shoes of the owner of this third party company; you discover my boss’s business on the web, you see they’re an agency for IT consultants like you, which is bad enough (who likes their competition?), but what really gets you steaming is this upstart rival is not only stealing potential customers from you, but to do so is using your own company’s name!  All those juicy commissions you should be getting, you’re losing to them… 

Wouldn’t you be pissed? 

Thus the lawyer’s letter; which made their client’s position clear.  They’d been incorporated earlier, had been established and using their name longer.  It was to all intents and purposes their brand.  And they wanted my boss to stop using it – and pronto.  Or there would be TROUBLE. 

What did my boss do?  The sensible thing; she stopped using the name.  She wrote back confirming her compliance with this order.  She changed her company’s letterhead, its website branding, all its publicity and marketing materials.  She then ordered us to ensure we answered the phones using a specific – and different – name (just in case the offended company called to check we were complying). 

Now I’d like to clarify a couple of things at this point.  First, I’m not saying my boss was using the name deliberately.  I’m convinced her use of that trading name was intuitive, logical and entirely innocent; it was after all shorthand for the longer name under which she’d actually incorporated her company.  Her mistake though was not checking a rival was out there using it already and considering the consequences; a mistake which cost her the price of re-branding her company. 

In the law, ignorance is no defence. 

Next, I’m not saying this “first dibs” on name use argument would be successful every time; the evidence for precedence and usage would have to be available to prove it.  But it’s a strong position to be coming from if it meant you had to fight your corner in the legal boxing ring.  And this third party company was willing to back their position with it. 

So what are the strategies for protecting your company’s incorporated, or trading, names? 

First, if you haven’t done so already, you should consider formally incorporating your company with Companies House, the official government register of UK companies.  That in itself is one safeguard, as no other company registered in England and Wales can have that name.  It will also give you a starter idea of the uniqueness (or popularity) of your name in trading circles.  You can run a search for company names with our duly formed^TM Companies House name search.  Try it now, and see what happens. 

Next, this you need to know: 

Names are NOT copyrightable. 

Whether personal, company, or product, the name that means the most to you for your business is not protected by copyright law.  The good news however is that names can be trademarked under law, and as you are seeking to use your company name for trading purposes, you should trademark it.  You can contact the UK Patent Office about registering your trademark.  I advise running an initial search of your name against the trading categories.  While there is a charge for this service, it would save you the time and expense of submitting an application at a substantially higher price only to find your preferred name is already taken.  The Patent Office team were also very helpful to us when making our application. 

You can use the “TM” symbol against your company name.  The “TM” mark indicates a trademark and, as you’re probably aware, functions like the “©” copyright symbol, in that it is notice to others that this is a brand, identifiable to the name’s owner, that they’re using it to sell their merchandise, and others shouldn’t try and pass off or sell work/merchandise using that name.  It’s unofficial, and while not carrying the weight of the official “®” symbol you get having registered with the UK’s Patent Office (which we got for our company name duly noted^®), it is nevertheless universally recognised.  Once you look for it in the everyday world, you’ll notice the TM mark everywhere, for names and logos.  We used the TM mark until our formal registration came through.  You’ll see I’m still using it for our other trading names in this article.  In the long run though, I suggest you seek to formally trademark your company name. 

But what to do if you’ve done the above, and someone has the nerve to still use your trading name? 

Contact them and tell them to stop.  You can do this yourself using a cease and desist letter, or sent via your own company’s lawyer.  Using a lawyer would probably carry with it more weight; it shows a level of commitment you’re willing to take to stop the offending party and how seriously you’re treating their breach.  They’ll sit up and take notice.  (Remember how my boss reacted on receipt of that lawyer’s letter?)  If you don’t have a lawyer, you can run a search for your nearest lawyer on the Legal Advice page of our duly registered^TM resources & links page.  You might get a free consultation, or a consultation may cost you money, but expert advice does.  Be prepared to pay something. 

Keep this in mind; the cost in time and money you spend doing the above now could substantially save you in both – as well as the hair-tearing frustration – in future years. 

© 2007 Julian Boote  All Rights reserved.www.dulynoted.co.uk 

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