I have a business that has a common name, for example " cash for gold los angeles" it is a ficticious name in the city of Los Angeles and I have a business license under that name but lately a competitor is using this phrase as their name on advertisements and they are actually claiming this as their business name. Can I do anything about this?
General Information
Corporation, limited liability company and limited partnership names may be adopted as follows:
A corporation name may be adopted if the name is not the same as or too similar to an existing name on the records of the California Secretary of State or if the name is not misleading to the public.
A limited liability company name may be adopted if the name is distinguishable on the records of the California Secretary of State or if the name is not misleading to the public.
A limited partnership name may be adopted if the name is distinguishable on the records of the California Secretary of State.
When determining name availability, names are checked only against names of like entities registered with the California Secretary of State (e.g., a proposed corporation name is checked for availability only against other corporation names).
Names are not checked against trademark or service mark registrations or against fictitious business names. Laws relating to trademarks and service marks can be found in the California Business and Professions Code section 14200, et seq. and United States Code, Title 15, section 1051, et seq. Laws relating to fictitious business names (which are filed with the county in which the principal place of business is located) can be found in the California Business and Professions Code section 17900, et seq.
Prior to adopting a proposed name, the name may be checked for availability or reserved for a period of 60 days.
Be sure that your trade name was actually registered with the Secretary of State, a license to do business in a city alone is not sufficient to hold the name. It must be registered along with all of the necessary documents to form the business with the state (for example the Articles of Organization). It may be worth checking with an attorney to be sure all of your organizational documents were properly submitted, only then can you be on solid footing to make a claim that they are using your name. Remember, it is possible that THEY registered the name and you did not, meaning that YOU may be facing a claim from them.
Joseph YurgilIntellectual Property Law AttorneyNew Orleans, LA ·
I think it is unlikely that you will be able to show a valid trademark in the name "Cash For Gold Los Angeles" because the name is descriptive and descriptive marks can only get trademark protection if you can prove some sort of distinctive character about the mark through (generally extensive) use in the marketplace.
However, as Mr. Brookman pointed out, corporation and LLC names must be registered with the secretary of state and must not be too similar to a company name already in use. I suggest you contact a business attorney in your area to help you form a plan to deal with the other business. Most attorneys offer free consultations so you can shop around and choose the attorney you think would be most helpful for you.
No one can provide you with actionable advice based on hypothetical facts.
As we’ve all told you before, “Cash For Gold Los Angeles” CANNOT serve as anyone’s exclusive trade name because that phrase merely describes the services being offered.
You need to speak with your own California-licensed intellectual property attorney who will explain to that IF you’ve properly registered the phrase you use as a trade name as a “fictitious business name” then B&P Code Section 14411 does grant you a rebuttal presumption that you have the exclusive right to use that phrase as a trade name, as well as any confusingly similar trade name, in the county in which the statement is filed. But the presumption is rebuttable – which means the other user can [and likely will persuasively] argue why that presumption should not apply and why it should be permitted to use that name as well.
IF, however, due to your long use of your business name consumers have come to associate that name EXCLUSIVELY, or nearly so, with your business – and only your business – then even if the name is merely descriptive AND if the other company is creating actual confusion in the marketplace by using the same or a similar name then you may be able to persuade a court to stop that “unfair competition.” You and your own attorney can read a court decision that applies that California common law via the link below [see also Dino, Inc. v. Boreta Enterprises, Inc., 226 Cal. App. 2d 336 (1964)].
In short, speak with your own local intellectual property attorney. And know that YOU created this marketplace confusion and business disruption by choosing such a descriptive name for your business.
