I own a cleaning company registered with the state. With a trade name similar to my LLC attached. I recently found a woman operating under the same exact name as mine. There is no differentiating the names as they are literally the same. I have been in business almost 2 years. She isn’t a registered business. She is also listed on homeadvisor using my business name and getting clients. My company is well known in the area and has great clients who I know have been referring but I have come to a kind of stand still. Then to find this woman 15 Miles from me with commercial cars with my business name has me so confused. I have searched the state website and found no trace of her when searching my business name. I called home advisor and they stated she’s listed as a sole propriortership so they didn’t need to verify her business license or insurance (which she’s claiming she has ) . What are my rights as an actual business owner ? Do I have a case here ? Need a little guidance !
She’s operating 2 Facebook business pages using my legal LLC name and trade name
Has 2 cars with 2 sides each with my business name and HER phone number
Listed on home advisor with MY business name
If you have registered your business name as a trademark with the state of NH, and you used your mark in commerce prior to her use then you can definitely make her stop using your mark. (Assuming NH has state registrations for trademarks, I am not licensed in NH). Even if not registered, you may be able to stop her, but it gets a little more complicated. Either way you need to consult with a NH license trademark attorney.
Peace be with you, and may love guide you.
You may at least, be able to sue for common law trademark infringement, and you may want to file for a U.S. trademark application.
Generally, you should do a US full trademark search which would include at least, USPTO registered trademarks, USPTO pending trademark applications, US state registrations, common law trademarks, and internet domain names to see if there are confusingly similar conflicting trademarks.
You should discuss with an intellectual property attorney licensed in New Hampshire in a private consultation.
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This of course begs for a proper analysis. What are the names being used and whether they are protectable trademarks or trade names and not just generic (e.g., Downtown Dry Cleaners). We also need to understand fully who was using the name first and where.
I will offer some general remarks about trademark due diligence below that you might find helpful and I encourage you to get some proper advice on this before taking any action.
Before you invest in any trademark make sure you get some legal guidance upfront. It is of course best practice to clear it before you start using any trademark and starting with a strong one is your best strategy. Know as well that merely registering your business name with a state or county agency or acquiring a domain does not convey any right to use that name in commerce as a source identifier or trademark. For example, I can presumably register my new tech start up "Boogle" with the NH secretary of state because there is no other business already doing business there under that name, but this does not mean that I would not be infringing on the Google trademark, which I would be. The onus is on you to ensure the name you choose is not a problem.
Your trademark will be one of if not the most important and valuable business assets you will have and you will ultimately spend more money in support if it than you will anywhere else (advertising, marketing, PR, branding, packaging, etc.). So you owe it to your business and yourself to make sure you handle this properly upfront and the first order of business always starts with a proper and comprehensive clearance.
Whenever you endeavor into investing in a trademark it is very important that you conduct the proper clearance due diligence on all the text names upfront and before you start spending any money in support of it or submit an application to the USPTO. In the US, this means searching under both federal (USPTO) as well as common law because trademark rights stem from use in this country NOT registration. This means that acquiring a federal registration does not necessarily mean that you are not infringing on another's intellectual property.
If you need more clarification, I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free consultation, get some insights then pick the best fit to work with and know you are free to work with counsel located anywhere as you have many options available not just those that provide services in your home state.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Legal, LLC on the basis of this posting.
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