If I register a fictitious business name, can someone else use the same name? I spent almost $200 to get my fictitious business name, and then I found out that someone else uses it too. I don’t think it’s fair to spend that much money for nothing.
A fictitious business name (or “doing business as” or “DBA”) refers to a trade name other than the registrant’s legal name. Your DBA allows you to change how you present your business to the world without registering a trademark.
DBAs do not change a registrant’s legal entity; they’re simply names assumed by existing businesses. In California, when you file a DBA with the county clerk/recorder’s office, you’re required to publish a notice in the local newspaper to let the public know that you’re operating under a different name.
Filing a fictitious business name does not give you exclusive rights to the name. In some states, multiple businesses can file the exact same fictitious business name.
However, in California, when you file a DBA, it establishes a rebuttable presumption that the applicant has the exclusive right to use the name as well as any confusingly similar name in the county where the DBA was filed. Each county has its own registry, and the presumption only applies to the first applicant to file.
Filing a DBA does not create exclusive rights to a name if there’s already a business using the name. The best way to ensure you have exclusive commercial rights to a name is to register a federal trademark.
Business owners often mistakenly believe that filing a DBA gives them protection against claims from others to the name. If you want to protect the name of your business, start by doing a thorough search for other businesses with the same or similar names.
The first step is to go online and search for your business name and similar names. If you find an existing business with a similar name, find out whether they are still in business and if so, where. A business in Ohio might not mind if you have a business with the same name in California, provided they don’t have a federal trademark and you’re not in direct competition.
The next step in your search should be the county clerk. In Napa, you can do your own search for free at 900 Coombs Street, Room 116, or you can pay $9 to have the search done for you.
Another important step is to search federal trademarks. You can search for free at the U.S. Patent and Trademark Office website: uspto.gov/trademarks.
Mary Luros is a business law attorney with Hudson & Luros LLP in Napa, and can be reached at firstname.lastname@example.org. The information provided here is not legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information.