How similar is too similar? Read to discover how to tell and what to do if you think you might find yourself facing a legal battle
There are only so many ways to name a business, and at some point or another, overlap is bound to occur. With so many businesses in operation today, same name issues are common. But—once you’ve read this post—you should be able to identify when your business name is too similar to someone else’s and know how to make good judgment calls on what to do to fix it.
Before we get right into it, let’s do a quick refresher on what trademarks are, since we’ll touch on them in this post.
A trademark is a “word, phrase, symbol, design, or a combination of these things that identifies your goods or services” (US Trademark and Patents Office (USPTO)). Basically, it’s something that identifies your business and helps set you apart from other businesses, like your business name (if you choose to trademark it).
Psst: for some great info on trademarks, check out this post, this post, and this post. To find out the best way to choose a name for your business and avoid sticky business name issues, read this post.
Okay, with that out of the way, let’s get to it.
How to Tell If Your Business Name Is Just Too Similar to Another
Let’s say you’ve been sent a “cease and desist” letter from another business with the same, or very, very similar name. Stay calm! There’s no need to panic. There is 1 main thing you need to worry about in this instance: is the fact that your business names are similar likely to cause consumer confusion?
To dig in further and understand this better, consider these 4 things:
- Is the other business in the same class or industry as yours?
- Geography and target market: what geographical area does the business target, and who is its target audience?
- Who was the first to start using the business name?
- Who registered their business name (that is, who trademarked it) first with the USPTO?
Is the other business in the same class or industry as yours?
It’s common for businesses to have the same or similar names, and if they work in different industries, there is rarely an issue, as it’s less likely to confuse the consumer. For example, the tech giant Apple can exist alongside a restaurant called Apple without any real confusion, but another tech company called Apple or Apple-lytics could cause some serious confusion for consumers.
If your business has the same name as another but you provide fitness coaching and the other provides food services, there shouldn’t be an issue.
Geography and target market: what geographical area does the business target, and who is its target audience?
If your business targets consumers in totally different locations, for example, if your business targets those in New Hampshire while the other business with a similar name targets those in Texas, you’re less likely to face same name/trademark infringement issues, since there’s a smaller likelihood of consumer confusion.
There’s even less likelihood of consumer confusion if you operate in different industries. But if you happen to both offer food services, you’re still probably in the clear since you operate in and target completely different geographical areas.
The issue gets a little sticky because of the prevalence of online business, though. If both your business and the other use the internet as a main source of marketing and revenue, there might be a problem. Think carefully and consider the other points in this post before responding or taking any drastic actions.
Who was the first to start using the business name?
When it comes to the law, the first person to start using their name in business is often seen as having rights to it. This is one of the factors courts consider in trademark infringement cases.
If you’re able to prove that you were the first person to start using the business name, you’re good.
Who registered their business name (that is, who trademarked it) first with the USPTO?
The business that started (1) using the name first, and (2) that registered the name first with the USPTO has the upper hand.
If you need a reason to trademark your business name, this is it. In the eyes of the courts, the business that has trademarked their business name (and done it first) has a more legitimate claim to it.
Making a judgment call: changing your business name and rebranding before someone notices you’ve been using their same name
Let’s say you’ve been running your business for a few months. One day, you notice a business with the same name as you, even after you’ve started selling your products online. You start to worry. Should you start over with a new business name and completely rebrand, or just keep on keepin’ on until someone besides you notices?
Before you panic, think of the main principle discussed above: is it likely to cause consumer confusion? And then break it down into the other 4 considerations: is that business in the same industry as you? Where is their target audience located? Did they start using the name first? Did they trademark the name first or, perhaps, are they trademarked and you aren’t?
After you consider these questions, if it seems like you might end up in a legal battle and be forced to rebrand anyway, it might be worth just biting the bullet and rebranding now. It would save you time, money, and stress to do it before it comes to legal proceedings.
For other ways to protect your money and business, watch the free masterclass: How to Legally Protect & Grow Your Online Business So You Can Keep More of the Money You Make