somename vs some-name?

May 6, 2009 10:41 AM

Businessnamefilter: How similar is too similar?

I have a name that I would like to register for a small business. All was fine until I did an official name search and found a similar name registered, here in Ontario, Canada. It is the same as mine with an added dash in between a prefix and a word. While it is not physically the same, it would be pronounced the same.

I am unable to get in contact with the registrant, and ServiceOntario has been unhelpful. This person/company has no web presence, nor is in the phone book. I wouldn't be posting if I could easily choose another name.

I have read the relevant legislation through, and the only useful things it states is that if I try to register a name already in use I can be sued for damages and that I can't use certain characters at the start of a name.

I understand that very few of you are lawyers, but I'm very interested in hearing about any similar issues that anyone has had or heard about - regardless of legal jurisdiction.

posted by Ctrl_Alt_ep to law & government (8 comments total)

A hyphen? That is too similar. I have seen names rejected that were much more different, for example "same words, different order" or "same words, abbreviated".

Even a homophone spelled very differently would be too similar, though it would be pretty likely to slip through the (mainly text-based) systems.
posted by rokusan at 10:47 AM on May 6

At least in US law from my understanding the key is if the businesses in question are in similar fields. It's why you can have an Apple music label and Apple computers. It's also why Monster Cables has had poor luck suing other businesses with the word "monster" in the name.

Since you don't tell us how related the businesses would be I don't know if my answer tells you to go ahead and look into it or to stay away. But my legal advice from someone not a lawyer is that if the name is so important to you it would be a good idea to go check with an actual lawyer to make sure you'd be able to use it.
posted by theichibun at 10:50 AM on May 6

I don't know about Canadian law, but I can tell you how the US handles it. Canada is probably the same.

The general principle is that if there's a reasonable chance of customer confusion, then the names are too close.

Two companies can have exactly the same name if they're in entirely different businesses. The textbook example of that was Apple Records and Apple Computer.

But if they're in similar businesses, then the names have to be distinct enough so that there's no chance that a customer will mistake one for the other. And even if they're in different business realms there can be problems. Apple Records (which came first) did sue Apple Computer over the name, and eventually there was a settlement. (And when Apple Computer got into the music distribution business, there was more litigation. Wikipedia)

If the only difference is a dash, and if the companies are in related businesses, then that's much too close.
posted by Chocolate Pickle at 10:56 AM on May 6

I've tried tracking down this business or person, but have found no record of them other than an entry in that database I searched. They didn't use their full name for registration, so that was a dead end. I really have no way of knowing what they are doing, and there is no plausible way we could compete. We are in different parts of the province.
posted by Ctrl_Alt_ep at 11:00 AM on May 6

Regardless of the legality, if you're just getting started, pick a new name. If you were both established, it'd be a tougher situation, but the potential for confusion is not worth it. You don't want them to reflect on your company or be confused for you. Never mind the potential lawsuits (which they would inevitably win), but just the general hassle and confusion.

Imagine if they do a job for someone, 3 months later, a flaw is found, and they look you up instead. They demand for you to fix it, and when you refuse, ("No, you wanted Same-Name with a hyphen!") they will blast your business with bad publicity.

The best-case scenario is that both of you do a good job, but there's still no reason why you want to have the same name as a local competitor.
posted by explosion at 11:16 AM on May 6

Have you checked the statute for information about name abandonment? It sounds like they may have registered and are not using it, which might allow you to use it.
posted by katemonster at 12:49 PM on May 6

It doesn't really matter if you can track down this business/person. Do you really want to go to the trouble of establishing an identity with logos, letterheads, business cards, etc., only to have someone appear from nowhere with an easy lawsuit?
posted by weapons-grade pandemonium at 12:50 PM on May 6

The name is somewhat important, but not nearly as important as running a great business. Booksmith was a good name, but they went out of business. Barnes and Noble is a bland name and they're still in business. I used to own a small business with an uninspiring name. As long as people can spell it to write checks, it's okay.
posted by theora55 at 4:02 PM on May 7