My business name is similar to someone elses - can I be sued?
Question Details: I registered the business name "Lithic Illustration & Design" around 2003. In 2007 I began using "Lithic Creative Media" as my business expanded to include video, though I had not registered it (I do own the url). Someone has recently threatened to sue me as his business (created in 2006), "Lithic Media," is closely named to mine. Does he have a claim? Would I have a claim against his use of "Lithic"?
Neither of you has a claim that springs from "registering" your business name as a trade name with the state. However, a trademark infringement claim may exist, and it would be much easier to pursue if you had registered the name as a trademark with the USPTO. Even if your competitor has registered the trademark, you may have a defense against trademark infringement since you were using the mark first. Of course, this is all very fact dependent (i.e. some nuances apply), but a good rule of thumb is that trademark rights spring from first use (not registration), but it is very difficult to enforce rights without registration.
Regarding the trade name issue, I've written an article that explains this phenomenon pretty well:
http://veritrademark.net/articles/difference-trademark-tradename/
Danny Bronski, VeriTrademark, www.VeriTrademark.com
