How Could Another Cleaning Business Claim YOUR Business Name?

Your cleaning business's name may actually not be yours. Someone else may own the name already. I've seen recent stories of hard working business owners, like you, who have lost the rights to their business name. This causes turmoil, strife, and actual economic losses. The purpose of this post is to serve as a cautionary tale on how to protect your business and its name and what you should do right away if someone says they already own it.

I googled and Google answered. I didn't have to look very far. Most business owners don't realize they need protect their branding, especially their business name. This guide sets out to offer ways you can protect your business name and what you can do to make sure it doesn't happen to you.

So you have an amazing idea for a new cleaning business. You come up with an awesome business name. It feels good. It really means a lot to you. You begin to market with it. You create social media pages. You create a website. You build a brand identity around it. But then one day, you receive a letter from an attorney that goes a little something like this [not a real letter]....

Dear Mr. Lineberry,

I am writing to formally request that you immediately cease and desist from any further unauthorized use of my registered business name, Shiny Spotless Cleaning Company. It has come to my attention that you are using this name, or one substantially similar, in connection with your business activities.

As the lawful owner of Shiny Spotless Cleaning Company, I have invested considerable time, resources, and effort into establishing goodwill and recognition under this name. Your unauthorized use constitutes trademark infringement, unfair competition, and dilution of brand identity, causing confusion among our customers and negatively impacting my business reputation.

Accordingly, I hereby demand that you immediately discontinue any and all use of the business name Shiny Spotless Cleaning Company or any variation thereof....

Gulp! Sounds official. But what does it mean? How can someone claim a business name? What should you do if someone reaches out to you with the same demand?

There are basically 3 layers of protection for your business name:

Business Entity Registration - Formation of corporations, LLCs, DBAs, etc. are left to the states and each state has their own agency to facilitate the creation of new businesses. Every state law differs, and I don't know other laws. I'll give Virginia's as an example.

In Virginia, if you created a cleaning company (let's call it XYZ Cleaning Company), and decided to create an Limited Liability Company, you'd form that LLC through our commonwealth's State Corporation Commission, pay $125 or whatever it is, and you will be the only XYZ Cleaning Company, LLC in Virginia. No other cleaning companies can have that exact name. No other cleaning companies can form another entity using that name like XYZ Cleaning Company, Inc. Or XYZ Cleaning Company, LP, or whatever. In fact no entities can file a fictitious name under a DBA using that name. Nobody can conduct business except for you using that name.

What's a DBA? Doing Business As. Not every state offers a DBA. Virginia does offer a DBA registration for $10 but it's not required here (could be required in yours). It's a fictitious name and if you register XYZ Cleaning Company as a DBA, then others can still swoop up that name through an LLC or Corporation and take over that business name. The DBA does not protect the name in Virginia (mist in other states though). In fact, other sole-proprietors wanting to start a cleaning business can lawfully use "XYZ Cleaning Company" too. Basically, if you have a DBA in Virginia, anyone can use your business name, to an extent....

DBAs, LLCs, Corporations or other formed entities are on the state level. But do you realize there are protections on the federal level?

Trademarks - Trademarks (TMs) are issued by the US Patent and Trademark Office and this agency issues Trademarks (as well at patents, service marks, copyrights, etc.) to protect your brand, or a TM in the case of protecting a brand name. 

If you have a business name that you don't want ANYONE to use, regardless of state, you need a trademark on that name. For $350, you can file a trademark application and potentially win the rights to that. There are nuances within searching and a good patent and trademark attorney can help you in the application process. But if approved, you can technically add a little _TM next to your business name to show the world that it's trademarked. 

As it relates back to the state level and the process for organizing LLCs, etc., you are comparing two different things. Any company can form using your trademarked name. The state does not have the manpower to conduct extensive trademark searches. So, someone can come along, use your business name that you trademarked and create a business that you have yet to register. However, federal law takes precedence over state law and while the TM doesn't compel your state agency to remove the listing, you can make it harder for the person using your biz name to conduct business. This can be unraveled in the courts.

Once you hold that trademark for your business name, it applies nationwide, not just to your state. 

But there's a caveat. Within the United States, trademarks are recognized a little differently than in other countries in that you don't have to have the actual trademark. 

Superior Trademark Rights - Let's say you casually form a cleaning business, ironically called XYZ Cleaning Services, but you don't get a trademark. In fact, you don't even get it registered in your state as a LLC. You did create a DBA though and made some social media posts early in your business, but didn't do too much.

If another company comes along and claims ownership for your business name to USPTO, it can go before a board and be decided on accordingly should you decide to pursue ownership of the name. They'll look at when you first used that business name compared to the other company's first public use of that name. It'll basically look for proof from either of you of who mentioned it first. If you did indeed use it first, you can actually block the other company's petition for the trademark even if you don't hold the TM yourself. Ideally, you'd want to get it trademarked obviously if it means that much to you to defend it.

I hope this helps you in protecting the name of your business. If you need further assistance, definitely seek counsel of a patent and trademark attorney within your state.