Legal Question in Business Law in New York

Re: Doing Business As

Your question touches on the law of trademark.

If your DBA is "confusingly similar" to the other business's name, the other business is active in the same segment (or a closely related segment) of the marketplace as you are, and the other business has been using the name since before you started, then yes, you need to change your name.

Trademarks -- indicators of the source of goods or services in the marketplace -- are there for consumer protection. They are meant to clearly and unambiguously identify the source of the good or service that the consumer is purchasing. Most people know many trademarks without knowing it; such marks include the Nike swoosh, McDonald's golden arches, "FLY THE FRIENDLY SKIES," "IBM," the odor of Chanel No. 5 perfume, the sound of the NBC 3-tone chime, the name and fancy script lettering of the Coca-Cola label.

A trademark does not have to be as famous as the ones listed to be infringed. A "mom and pop" store has its trademark name and that name is just as protectable as is a more famous name. The question that the courts ask is "Will the simultaneous use of the senior (the other business's) and junior (your) marks cause confusion in the marketplace?" If only one consumer only for an instant is confused by the similarity in your names, then the trademark is infringed. The courts go through an elaborate list of factors to determine whether a consumer is "likely" to be confused and go with the result of weighing those factors.

If your names are similar and you sell similar goods/services, your name is likely to be confusingly similar to the other business's. He has the rights to the name since he was there first.

You don't want your customers going to him by mistake, either.

THE INFORMATION PRESENTED HERE IS GENERAL IN NATURE AND IS NOT INTENDED, NOR SHOULD IT BE CONSTRUED, AS LEGAL ADVICE. THIS POSTING DOES NOT CREATE ANY ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. FOR SPECIFIC ADVICE ABOUT YOUR PARTICULAR SITUATION, CONSULT YOUR ATTORNEY.