Legal Question in Business Law in California

The DBA law was not intended to eliminate duplication or similarity of fictitious names. The County has no authority to refuse a filing on grounds that the same or a similar name is already on file. It is recommended that you review the DBA Index to ensure that the name you choose has not already been registered. The filing of a DBA does not, of itself, authorize the use in California of a DBA in violation of the rights of another, as established under federal or California trademark laws or the California DBA or common law.

Please see my detailed treatment of DBA's on my blog at:

http://bealbusinesslaw.blogspot.com/2010/02/do-i-need-to-file-fictitious-business.html

Proviso: The above information does not constitute legal advice and does not establish an attorney-client relationship between us.

Contact: If you would like to discuss this matter further in a more private forum, please feel free to contact me directly at [email protected].

Registering a DBA with the county does not, in itself, have any legal impact or effect on your right to use the name exclusively or to preclude other from using the name. It is not the same as registering a trademark, nor even as effective as acquiring some limited right to a name by incorporating or forming an LLC by that name.

This doesn't mean you don't have any legal right or recourse against the copycats, however. California has adopted a state trademark law, see Business & Professions Code sections 14200 et seq., and has broad laws against unfair competition, B&P Code sections 17000 et seq. and 17200 et seq. You should look up and read these laws and that may point you in the right direction for (a) protecting your trademark on the state level; (b) composing a cease and desist letter, and/or (c) retaining a lawyer to sue the competitors.

As a Franchise Attorney I entirely agree with Attorney Bryan. Even if you have not registered "Critter Sitter" as a service mark (and you should register with the CA Secretary of State as soon as possible), you already have what are called common law trademark rights that extend to your immediate trading area. Any confusingly similar uses (which the others appear to be) are infringing on these trademark rights. You should also see if anyone has registered this mark federally with the USPTO. A federal registration creates certain presumptive rights throughout every state in the U.S. as of the registration date. Someone at the federal level may have trademark rights that are superior to yours and could bring an action against you. Consult with a good trademark or franchise attorney in your area for specific advice.

Mr. Franchise - Kevin B. Murphy, B.S., M.B.A., J.D.

Franchise Foundations, a Professional Corporation