Legal Question in Business Law in Massachusetts

Re: Business names

Not easily, they can't. It might be possible, though. Answer these questions for me in e-mail ([email protected]):

a) Are you in the same general business? Do you compete?

b) Who was using the name first?

c) Does the name have a lot of goodwill, i.e., do either of you have a lot of name recognition built up?

d) Have you been threatened? (Are they aware of the name conflict?)

e) Is the name YOUR name or the name of a founder?

f) Is the name, aside from the fact that two companies use it, otherwise relatively unique? (I think there are many companies named Atlantic and a lot of them are in the Heating business! -- I hope that isn't you!)

g) If you're doing the same thing, who has the higher quality product or service?

h) Are they geographically VERY close?

i) What IS your company name?

j) Which one is bigger and by how much?

Write me at [email protected] with the answers.

Re: Business names

You are approaching this as if it were a corporate law problem; it isn't.

What you have is a trademark problem. If the other user has a trade name that is protectable under state or federal trademark law (you don't mention an allegation that the other business has a registered trademark), then your use may be wrongful as against the other user.

First, one must inquire whether the name is sufficiently distinctive, or otherwise if you have built up sufficient brand identity in the business name, to sustain protectable trademark rights, and make the same inquiry about the other business' use of its name.

Second, if a protectable trademark is in issue, who used it first? (and, if both parties use the name in interstate commerce, who did that first?)

The fact that you are incorporated is TOTALLY irrelevant to this problem.

Please feel free to contact me if you have further questions. Best wishes,

LDWG