# Business name in use, please help



## martinwoods (Jul 20, 2006)

I am just trying to get some help here until I can contact an attorney tomorrow

I was just contacted by a company with the same name as mine saying they want me to quit using my website because it is their name

I have been in business for 3 years and they started less than a year ago. I pay my taxes to the state with my business name but I did not realize I was not actually registered by name with the state. Does that mean since they are registered even though I have been in business longer that I have to give up the name and the website. I thought when you had a domain name it was yours. I just cannot believe they didn't even look at the domain before registering the name.

Again I am stupid because I thought when I was paying taxes to the state that I had the name so that is my fault, but I did check before I got the domain.

Any help please. I know you cannot give legal advise but maybe something


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## paulo (Dec 13, 2006)

martinwoods said:


> I am just trying to get some help here until I can contact an attorney tomorrow
> 
> I was just contacted by a company with the same name as mine saying they want me to quit using my website because it is their name
> 
> ...


Are both businesses doing the same type of business?

From my understanding they can not ask you to discontinue use of your website, unless they have a Registered Trademark with that name, but even with a Registered Trademark, they would have to go through ICANN to do that request.

If they do not have a Registered Trademark, if you have been using the name before them, then you would have first use, and can oppose any attempt to register the name.

As far as state registration, which may vary from state to state. You may not be able to use the exact same company name if theirs is already registered, but with a little change to you name, you can register your business name with your state, and continue to use the domain.

In my opinion the company that sent you the notice can not ask you to not use the domain, they have no footing to stand on. It most likely is just a scare tactic since they would like their domain to be the same as their company and someone happen to beat them to it.

Good Luck. I'm not a lawyer, but I stayed at a Holiday Inn last night.


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## charles95405 (Feb 1, 2007)

Here is the real question....which of the two of you can afford to hire an attorney??? can you afford $200 plus an hour?? This is sort of the new 'golden rule'....those with the gold rule.

I would suggest you at least spend an hour with an attorney...we sure are not in the position to give you advice on what to do..


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## Air Art Girl (Mar 29, 2007)

you should have registered your business domain name with your state as a DBA. Does your tax info come in your business name or personal name? You DO own the domain name. If for some reason they have the registered name with the state, you will have to stop using it but you can have your domain point to another site. They cannot make you stop using your domain, only stop doing business using the name if they own it. Check with your state. Sometimes you can search business name thru the department of licensing. We recently registered 3 more DBA's with the state. We did however do a search and grabbed the domain first then paid to add the DBA to our state business license.


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## cancelledbyrequest (Jul 18, 2007)

charles95405 said:


> Here is the real question....which of the two of you can afford to hire an attorney??? can you afford $200 plus an hour?? This is sort of the new 'golden rule'....those with the gold rule.
> 
> I would suggest you at least spend an hour with an attorney...we sure are not in the position to give you advice on what to do..


Word. Cause if their making more money than you then they can easily pay some high class lawyer to shut you down and vice versa so charles your on point. so it all boils down to who has more money to protect their name. I was recently in a car accident and my lawyer was charging $450 per hour and the dude takes lunch break on my time, but guess what I won the case. I said that to say this. Money talks so if you can afford a good lawyer to fight for your name then do it, but if you don't then... you know.


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## martinwoods (Jul 20, 2006)

Thanks for all the info
I thought if you had a website it was yours. 

Thanks again
Teresa


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## sunnydayz (Jun 22, 2007)

did you registar your business license and do a dba for your business when you started it in your state? if so and you have been doing business under that name and its registered with your state, I would think they would not be able to do anything about this. Although I am not an attorney


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## Girlzndollz (Oct 3, 2007)

martinwoods said:


> Thanks for all the info
> I thought if you had a website it was yours.
> 
> Thanks again
> Teresa


Yeah, it is yours. You can offer to *sell *it to them for an exorbitant amount of money, if they would like it.

As far as registering your business name, what are the rules in your state? 

I had to register my name with the state, but only because it was ficticious. (It didn't include my last name.) I had to make sure with PA it was not taken first. First come, first served.

After that, I applied for my EIN. Not necessary since I am a sole proprietor with no employees.

So, if my business name had my last name in it, and I decided to use my SS number for paper work, I really didn't need to file anything. There is no sales tax collected on clothing in PA.

If my case was like that, I would be in your position. If any of these apply to you, I think you must find out from the lawyer how you are protected against this? 

I agree that filing taxes to the state, income or otherwise, should establish your right to the name. Also, agreed again, if it is another industry altogether, shouldn't be a conflict.

I think they want your domain name. Did they ask for the domain name or for you to stop doing business as?

Please let us know how you make out.

Charles is on the money with law suits. May the deepest pockets win, no matter what the lawyer promises up front.


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## Girlzndollz (Oct 3, 2007)

PS: I believe that domain name is yours as long as you are paid up. If it lapses in payment, it will be a free for all. Check that out. I know I sweat it over my renewal date.


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## paulo (Dec 13, 2006)

The domain name is yours. Especially if you use it for business, or something.

For an example.

Nissan Computer Corporation 

and

Nissan USA - Nissan Cars, Trucks, Crossovers, SUVs, Hybrid 

I doubt the company that wants your domain has deeper pockets than nissan, and nissan still wasnt able to get their actualy company name as their domain.


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## martinwoods (Jul 20, 2006)

We both do the same business.
When I started 3 years ago I registered my website and have used it since, I pay my taxes to the state of Ohio under the name but I guess that did not mean I registered that name. He started about a year ago but did register the name. He only found out about my company having the same name because one of his customers went to my website thinking it was his and then he found out there was another company with the same name. I honestly thought I was registered 3 years ago since I pay my taxes to the state under that name but when I did a search on the state website last night I found out I did not actually register it.

I have spent a lot of money on advertiesment signs, business cards etc and my website. He is saying that I need to cease and desist and quit using the website, I just didn't think someone could make you quit using a website if it was yours and you have had it.

I am still waiting on the law offices to open

Thanks again


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## prometheus (Oct 19, 2006)

I wonder if the fact that you have been doing it for three years would help. I wonder if you could register under a similar name and still keep the website.

Nice cabins by the way.


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## binki (Jul 16, 2006)

Here are the questions you should provide answers to if you want a more complete answer.

1) what form of business? C-Corp/S-Corp, LLC/LLP, Sole Prop?
2) what is the website name?
3) what is your company name?


Once you have answered that, you might help us help you.


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## paulo (Dec 13, 2006)

I think the domain name itself is no question that its yours, but doing business in the same state with the a company with the same name which is already registered with the state will be your problem.

Looks like you will have to change your name unless there is some sort of state rule that states that if you were using it previously then you can keep it. Most states that I know only require you to register the name if you are filing some sort of LLC or Incorporating papers. Did you at least register a Fictitious Business Name Statement or DBA?

Options as I see it...other than getting a lawyer.

1. Contact your the dept withtin your state and get as much info on business registrations, and usage. It may clear up some issues for you.

2. Keep the domain name and change your company name slightly and register it with the state. Which would mean some expense on re-marketing your slightly differently company name. Busisness Cards, Flyers, Printed Materials, etc. If you can't keep your business name I would still keep the domain since it looks like customers are finding you.

3. Give up the domain name. You would spend a little more than option 2. Back to square one.

Bottom line is, you can keep your domain, but can you use your business name within your state?


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## martinwoods (Jul 20, 2006)

We do t-shirts promotional products etc.
sole prop
buckeye promotions.com
company name is buckeye promotions but I am changing it to buckeye promotions
unlimited

do I have to give up my website.
Thanks Robert for the compliment on the cabins

Thanks for everyone's help


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## Girlzndollz (Oct 3, 2007)

martinwoods said:


> do I have to give up my website.


 

My condolences. Something like this is not good news, and I am sorry for you.

May I please ask a question? I think I understand that you have to stop doing business on this domain name, but what I think I'm not understanding is do you have to walk away from it?

Can't you still "keep" the domain name? I understand they didn't know about you either, until the customer told them. They weren't trying to undermine you when they registered the name.

But is someone forcing you to walk away from the name? If yes, I had no idea you could be 'forced' to give up registration. I thought if someone wanted your domain name, they had to buy it from you, or get lucky enough to catch you off guard while the payment is lapsed. 

Sorry to bother you, if you don't want to talk about it - I understand. I think I am just a bit shocked and confused, I can't imagine how you feel. 

To think, I was told I only needed to register if using a ficticious name. I will always advise registration, always, regardless.


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## Girlzndollz (Oct 3, 2007)

~~Ugh~~ sorry! I think I read that wrong. I read "I do have to give up my website" are you asking "do I have to give up my website?"

From what I've heard about companies buying up good webnames and sitting on them for profit, reselling them for $200, without being an expert, I say "heck no you do not have to give it up!"

How could one be a free for all, and you have to walk away? Doesn't make sense.

Does this other guy have a website? In biz one year, does he have one? Or is he looking to take yours from you?


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## Parkwood (Jan 14, 2008)

I have used Ingenio Pay Per Call business advertising through local search ads. many times for quick legal questions. I also used them during tax season for some tricky tax questions. This is a great site and you can talk to very competent professionals, billed by the minute, at a fraction of what you would otherwise pay. One tax attorney I spoke to was a partner in a well known NY law firm and I only paid $1.99 a minute.

This is not a substitute for retaining an attorney but is an excellent resource for quick and inexpensive legal advice. Lots of other "gurus" available for other subjects also.


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## binki (Jul 16, 2006)

I wouldn't give up the web site. There are about 1000 buckeye promotions out there, just do a search for it.


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## TripleT (Apr 29, 2007)

Chris, Slow down. Don't to anything until you speak with an attorney - that's the only way to get an answer. Just because they sent you a letter, don't panic.
Nobody on this board really knows anything about Ohio case law, so this is one time an attorney is a must. Good Luck!


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## sonambulo (Sep 22, 2007)

i'm pretty sure the domain is yours no matter what, although you might not be able to do this business with the name considering this other guy that has registered it. 

on the bright side, you can sell the domain to him for a sizable sum and use that to redo all the promotional items, business cards, etc u have already printed.


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## paulo (Dec 13, 2006)

Girlzndollz said:


> Does this other guy have a website? In biz one year, does he have one? Or is he looking to take yours from you?


I think he is just looking to take the domain. I would say. Keep it or Sell it. 

Or else fails....frwd the domain to a pron site.


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## Girlzndollz (Oct 3, 2007)

paulo said:


> I think he is just looking to take the domain. I would say. Keep it or Sell it.
> 
> Or else fails....frwd the domain to a pron site.


I agree, that's what I am asking: is he trying to kind of 'trick' her out of the site, to avoid buying it, which is what I feel may be at hand. 

Waiting to hear from the OP if someone is "telling her" that she "has" to stop using it, or if she is "wondering" if she has to stop using it.

I am under the belief it is hers, and hers to keep, or sell. I am hoping she can keep it and point it at her new domain, and keep her current traffic. I'm sure past customers may have her current site bookmarked.

I know we're not lawyers, but I don't know how a lawyer can answer this question. Also, you can be sued for anything, a hang nail, no one is safe, but then a lawyer is only paid to argue on your behalf and take all of your money. MHO.

There are threads on the forum about folks doing a search on company names they may want to use for their business, checking the availability, only to go back for it and a domain company snatched it up for 5 days and offered it for sale for a huge markup. If they can register the name only for holding and reselling purposes, what would make this case any different? 

Other folks have registered their businesses with the state forgetting to check for the domain availability only to find it already registered to someone else. It happens.

All of these instances tell me, this domain belongs to the OP. I'm really pulling for her since something stinks about this whole thing. Best regards!


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## TripleT (Apr 29, 2007)

martinwoods said:


> I am just trying to get some help here until I can contact an attorney tomorrow
> 
> I was just contacted by a company with the same name as mine saying they want me to quit using my website because it is their name
> 
> ...


Chris - you need to go to your lawyer. Somebody can't just write you a letter and force you to stop using your website. If they are going to try to force you out, it will take a Court Order to do so - So, you need a lawyer no matter what.

I'm no fan of lawyers, and I'm a big fan of this Forum - but this is a situation where people's opinions can point you in the wrong direction with long lasting consequences.

Please keep us posted - and it may not be as bad as it seems. As already stated, Buckeye is a common name in Ohio, so there's little doubt that a similar battle has already been waged in your state. Your lawyer will be able to pick that up and steer you in the right direction. Best Wishes!


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## Girlzndollz (Oct 3, 2007)

Tom may be correct with the lawyer thing, but I personally wouldn't pay for a lawyer until 'the other guy' does. That's just an added expense that may be completely unnecessary. 

I think folks here are trying to be as helpful as possible by siting past experiences.


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## martinwoods (Jul 20, 2006)

Thanks for all the advise.
I did change my name with the state to buckeye promotions unlimited since he did actually register it under buckeye promotions.The SOS says he has the right to use it since I did not actually register (thought I had) even though I have been in business for 3 years and him almost a year. Anyway, he called me he did not write a letter, he said his lawyer told him to but he thought he would speak with me first and try to get me to stop using the name. he does not have a website, but wants me to quit using mine. My real concern is can he stop me from using my site. If so can I direct it to my new domain name, I have already too many business cards out there with the website on it and if people go there and it is not there they will think I went out of business.

Thanks again for all the input. You guys and girls are great


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## prometheus (Oct 19, 2006)

You can do a redirect, and it is usually easy. I use GoDaddy, and there is a siple panel that will let you do it. When you type in the old address, it won't even go there, it will go to the new one.

Another way would be to build a simple page that says that you are redirecting (and why) and then after a few seconds it takes you to the new site.


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## wormil (Jan 7, 2008)

martinwoods said:


> My real concern is can he stop me from using my site.


I posed the scenario in a forum where lawyers answer questions and I'll let you know what they say. I doubt he can make you stop using the website but we'll see what the lawyers think.


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## Girlzndollz (Oct 3, 2007)

prometheus said:


> You can do a redirect, and it is usually easy. I use GoDaddy, and there is a siple panel that will let you do it. When you type in the old address, it won't even go there, it will go to the new one.


 
This is the best way and it is seamless. The customer will not even know they are on "buckeyepromotionsunlimited" instead of "buckeyepromotions" unless they look up at the address.


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## TripleT (Apr 29, 2007)

Chris, I sure hope that change will be enough to placate them. Just remember, they can't force you to do anything through phone calls and/or letters. Good Luck!


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## martinwoods (Jul 20, 2006)

Thanks for all of the great replies. This group is a great group of people and I thank all of you for taking the time to answer my questions.

I have an appointment tomorrow with the attorney so we will see what he says.

On a lighter note, it is cold here, so for all of you in the warmer climates I am jealous
That was the main reason for starting the company so that we can shut our cabins down and go to AZ or FL for the winters and print there.

Thanks again for all your help


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## martinwoods (Jul 20, 2006)

Here is what the sos website says so I am totally confused







Who must register with the Secretary of State of Ohio?







Anyone who is planning to do business within the State of Ohio, using a name other than their own personal name, must register with our office. Sole Proprietorships are not required to register with the Secretary of State`s office. This applies to companies in Ohio and companies in other states or countries wishing to do business in the State of Ohio. Companies outside the State of Ohio often have to include a Certificate of Good Standing from their home state`s Secretary of State or registering authority to accompany their filing.


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## TripleT (Apr 29, 2007)

Didn't you say you were going to see an attorney? Just ask them. Each state has their own set of rules and regs, so I still say, put your mind to rest and just ask the lawyer what (if anything) you are required to do in Ohio.


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## SeasonEnds (Sep 9, 2007)

So, what would happen if he paid 400 to file for a federal trademark instead? Just put when the name and logo were first used in commerce. Could this help his case? If he owned the trademark and used in commerce years before him?


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## prometheus (Oct 19, 2006)

Here in Georgia, I had to register my business with the county, BUT I also had to do a DBA. It just involved going down to their record department and looking through old books. And then letting them know that I didn't see anyone with the same name. Then advertising in the paper. Simple in a small county.


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## martinwoods (Jul 20, 2006)

I also had to register with the county but the other guy is saying I had to register with the secretary of state of ohio, which I notice you did not say you did for the sos of georgia. Why would you not have to do that. I am so confused. I also just talked to someone that also thought they registered their business name with the state because they had went to the state tax website which is totally different than the sos website. I still don't get it . My appointment with the attorney got pushed back


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## Girlzndollz (Oct 3, 2007)

TripleT said:


> Didn't you say you were going to see an attorney? Just ask them. Each state has their own set of rules and regs, so I still say, put your mind to rest and just ask the lawyer what (if anything) you are required to do in Ohio.


 
I really agree with Tom on this. The information from the state site says to do it the way the OP did. For this confusing matter, someone needs to hash out the legal standing on this matter. 

As far as the website issue, if a lawyer can help, that's good. That is the only thing I don't understand how a lawyer can help. But, hopefully I will learn how.

We were dragged into a lawsuit once. It was the worst thing. We learned that just because the other guy's lawyer says it is true, doesn't make it true. That's when you need your lawyer to tell you what's true for you.


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## TripleT (Apr 29, 2007)

This whole thing comes back to Ohio. 

An Ohio judge can only rule on a trademark to the extent that one Ohio company is infringing upon another Ohio company. Same with the website. Unless "personal jurisdiction" can be established over an out-of-state company (which is a very high standard), there can be no lawsuit filed against a non-Ohio company.

So, in this case, if one of the companies was anyplace other than Ohio, there would be no issue at all. Ohio has no authority over trademarks or websites.

But who knows Ohio Law? Unless this whole thing is just a bluff by Chris' competitor (trying to get her to change her name on the cheap), then the competitor will need to take legal action.

So, seeing a lawyer now - is a lot cheaper than hiring one if the competitor files a lawsuit.

(By the way, I'm not an attorney but I have had the unfortunate experience of spending many years in the circuit and the federal court systems. It's been my experience that it's not who is right and who is wrong - it's all about how the game is played that determines who wins the case. The best attorneys are the ones that keep you out of the court system.) 

So, Chris, again, put your mind to rest and let an attorney handle it. You may not have anything to worry about!


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