In 2007 my husband established his remodeling business, and registered the trade name NSR, with the state of Colorado. We have renewed this name annually -on occasion it expired, but we still registered it. The last time it was registered was 06/29/2011 and it was set to expire on 8/2012. I held off on the renewal because we were considering changing to an LLC. Today I went to register the name and noticed that someone in another city register the exact name NSR ,for the same type of business, in 3/2012. At this time the trade name had not expired. In 12/2012 this person formed an LLC using the exact same name. We would like to know if I need to file a Cease and Desist for infringement? We do business in Colorado Springs, and he does business in Denver.
Thank you for your replies; however, neither answers my question. Both businesses provide the same type of service-remodeling, both have the same exact name. My husband established his business in 2007, the other person began using NSR in 2012. I would just like to know if mailing a Cease and Desist letter would be beneficial? thank you
Contracts / Agreements Lawyer
Unfortunately, trade names are not exclusive in Colorado. Multiple persons or entities can use the same trade name and often do. Trademarks, on the other hand, are something to which an owner can claim an exclusive right. It isn't uncommon for a business to have a trademark and trade name that are identical, but a trade name isn't necessarily a trademark (vice versa). Even if you have not registered a trademark with the State of Colorado or the U.S. Patent & Trademark Office, you could still have common law trademark rights. You should really discuss this with an Intellectual Property attorney to assess your rights. I also encourage you to consider doing business through an LLC or corporation. If done and maintained properly, individual owners of such entities are not personally liable, in general, for claims against the business.
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Patent Application Attorney
The key question is how you are using NSR. If it is simply a name of the company (dba) then it does not really matter. If, however, you are using the name as a service mark, i.e. you advertise NSR for remodeling services, you probably have common-law rights in the name. One problem with common law rights is that they can be limited geographically. You really need to sit down with a trademark attorney and provide them with 1) samples of your advertising and 2) an idea of what geographic area you have served over the last 5 years. He or she will then be able to give you a better idea on how to proceed against the newcomer.
This is not legal advice. Even if it were, fee legal advice is worth what you pay for it. The facts of every case are different and should be addressed by a competent attorney who has all of the facts.