Some one trading under my company name

Apip99

Afternoon all,

Just wanted to get some thoughts on what has happened to me.

I have a landscaping company called Delgany Landscapes, which has been trading since May 2006. The company name is registered to me, as well as being registered for VAT, in the company name.

Yesterday I got a 'what’s what' brochure thru the door, they advertise for local companies, trades etc. When I looked thru it, I was horrified to see a company calling them selves Delgany Landscapes. I called the number and the guy that answered the phone said he was Delgany Landscapes. When I explained who I was and that the company name is registered to me etc etc, he got a bit funny and changed his story, saying that his company is Delgany Paving, and the magazine must have made a printing error. Bull S*ite! As the advert is for garden design, roll out grass etc...

I called the magazine and spoke to a guy who said he was the boss, and that he knew the guy who was saying he was Delgany Landscapes, and then apologized to me, and said he will not run the advert for him any more. He also said between him and I, the guy is a traveller!

How can I stop this guy using my company name?

My reputation is every thing to me and my business, and I want to protect it. The thought of some cowboy doing a bad job, under my company name is a horrible thought!!

Any idea's on where I go from here?

Thanks,

Phil

wiredup

As I understand it you have to be a Company, as in a public LTD company to have any right over the trading name. If you just have a registered business name than this does not count. I may be wrong.

forbairt

well if he doesn't have a registered business name but is trading / advertising under that ... its illegal ... so I guess you should check on the CRO ...

ButtermilkJack

According to the CRO website there is only one registered business name "Delgany Landscapes", I assume this is your good self. So this means that the other guy calling himself 'Delgany Landscapes' is in fact breaking the law.

However, all he has to do is pay €20 and register the name and he can trade under it as well. Nothing wrong with that, as it's only a trading name. As mentioned above, you need to set-up a Ltd. Co. called "Delgany Landscapes Ltd." in order to claim sole use of the name.

dahamsta

Only one company can have a given name, but anyone can register any RBN they wish, whether it's been registered before or not, and they can trade under that name. If they're trading under that name in a deceptive manner, then you may have a case against them for fraud or deception or what-not, but that's a different matter entirely. If you want exclusive rights to a name, you need to trademark it.

(As has been said, if yerman is trading under an unregistered name then strictly speaking he's breaking the rules, but it's not as big a thing as is being made out. Again, it's deception is the key.)

adam

Our man in Havana

So could a guy that owns say ABC Ltd demand that anyone with RBNs for ABC stop using the name?

fintan

The only way you can protect yourself is to register "Delagnay Landscapes" as a trademark.

A RBN offers absolutey no protection what so ever.

mikemac

When you think about it there must be loads of Ryans Newsagents or Main Street Butchers as examples.
I made them up but I'm sure they exist

They are fully entitled to trade under those names even if many other businesses use this since they are sole traders and not Ltd. companies

Nuttzz

Its called passing off

http://en.wikipedia.org/wiki/Passing_off

fintan

Nuttzz wrote: »

Its called passing off

http://en.wikipedia.org/wiki/Passing_off

I'm nearly 100% sure that in Ireland, that passing off can only be claimed if the company name has been trademarked.

Either way the OP needs to go talk to a solicitor for ten minutes and clarify exactly where they stand.

information

fintan wrote: »

I'm nearly 100% sure that in Ireland, that passing off can only be claimed if the company name has been trademarked.

Either way the OP needs to go talk to a solicitor for ten minutes and clarify exactly where they stand.

Passing off has nothing to do with trade mark names, which can be pursued as a breech of trade mark.

antoinolachtnai

You really need to see a lawyer. Time is of the essence here. It is important to get a marker down at this early point.

The first thing to do is get the solicitor to write to the guy. Rather than going confrontational, I would have the letter recount that:

- you understood from him that the advertisement was a mistake and that his operation is in fact called delgany paving

- that he will not be trading under the name delgany landscaping in future.

Say that you trust this is the position, and that you do not expect to see any other advertising about this again.

You might also consider having the solicitor write to the magazine or newspaper involved, just to be sure.

Obviously you will have to take legal advice about the above. My feeling is that the solicitor will tell you to take a harder line and to seek written assurances. I am suggesting you not do this because of the likelihood that you won't get them and then you will be forced to the next step.

My view is that the chances are that he will back off and forget about the whole thing when he gets some pressure, if you give him a way out.

Unfortunately, if he doesn't back off, and you plan to pursue this, you may find yourself having to take High Court action. This will probably cost you 5k-10k, maybe more. Your solicitor may be able to suggest an avenue to take action in the District Courts, but I'm not sure. My experience was with the High Court.

Another approach you should consider doing as well is to go on an advertising blitz in the Delgany area. You could flyer the whole area for a thousand euros, explaining in the nicest terms that you are the 'real' Delgany Landscaping, with a picture of yourself, giving details of your history in the area, etc. You should also tell all your existing customers what has happened, although you should be as nice as possible in the telling of the story.

I would leave all discussion of the other party's ethnicity out of it if I were you.

Savman

fintan wrote: »

The only way you can protect yourself is to register "Delagnay Landscapes" as a trademark.

A RBN offers absolutey no protection what so ever.

This is true.

As someone mentioned, there must be a hundred "Murphys Butchers".

antoinolachtnai

Savman wrote: »

This is true.

As someone mentioned, there must be a hundred "Murphys Butchers".

Well, it looks like passing off to me.

You don't need a trademark to establish passing off.

It obviously helps, but it isn't necessary at all.

Even with a trade mark you have to go to Court, almost certainly the High Court.

Apip99

Eavening all.

Thanks for all the replies.

Well, Passing off it is. Spoke to my solicitor and I was getting a letter done up to send to this guy. I would be worded to ask him to not trade under my name of else legal proceedings will follow. So all sounded good

BUT... I have since found out that the guy is a traveller, born and bread. He pays for the advert using cash, and does this every month by meeting the boss of the magazine in a car park every 4 weeks. Yes, dodgy I know, and you would have thought the advert guy would have some feck'n cop on.

Any way, I have since found out that (not suprisingly) the guy is a bit of a cow boy, and there have been complaints about him thru the summer. Workman ship etc.

So now I have two choices. Spend time and money putting the word out that I am Delgany Landscapes. But my problem here is the damage may have already been done, reputation is key to my business, and the thought of someone telling another person that they would never recomend Delgany Landscapes horrifies me.

My other option is to change the company name to Philip Morris garden Design. Which I do use from time to time.

I would hate to see Delgany Landscapes go, as its been my puppy for the past few years and I've worked hard to build my business, but it just feels tainted now.

There is no point in persuing the guy, as I will get no where, and it will cost me.

Really P*ssed off about the whole thing.

Looks like the traveller has won again, and the honest Joe just screwed.

Phil

forbairt

Hmm... personally I prefer the name

Delgany Landscapes to your own name ...

Would it be possible to merge the two

Philip Morris
- Delgany Landscapes

So that you get to keep your name for your old name as well ?

Guess you'd need to have a look and see what kinda damage has been done to the name Delgany Landscapes first ...

Mr. Presentable

Good idea. Delgany Landscapes - by Philip Morris



BTW, how's the tobacco business going?

antoinolachtnai

I would get those fliers out. And use your own name in combination with the other name.

The damage can be controlled, particularly if it's a name you've used for years and years.

You are right that it is not worth pursuing him. The problem is that if you don't pursue him vigorously, it will weaken your claim later.

It might be a good idea to file that trademark application!

Nuttzz

Apip99 wrote: »

Eavening all.


BUT... I have since found out that the guy is a traveller, born and bread. He pays for the advert using cash, and does this every month by meeting the boss of the magazine in a car park every 4 weeks. Yes, dodgy I know, and you would have thought the advert guy would have some feck'n cop on.

cash is king,

So now I have two choices. Spend time and money putting the word out that I am Delgany Landscapes. But my problem here is the damage may have already been done, reputation is key to my business, and the thought of someone telling another person that they would never recomend Delgany Landscapes horrifies me.

My other option is to change the company name to Philip Morris garden Design. Which I do use from time to time.

I would hate to see Delgany Landscapes go, as its been my puppy for the past few years and I've worked hard to build my business, but it just feels tainted now.

There is no point in persuing the guy, as I will get no where, and it will cost me.

Really P*ssed off about the whole thing.

Looks like the traveller has won again, and the honest Joe just screwed.

Phil

use both names, ask the magazine bloke to do an advertorial about the name change for you at a very competitive rate (ie next to foc)

macshadow

OP do you think it's just a coincidence this guy has been using your company name?
It would be interesting to get someone to call him and say he was recommended by one of his (your) previous customers to see if he would put them straight.

Apip99

Good idea macshadow. Think I'll give that a shot today.

I'll keep you posted.

ambro25

Your solicitor is right, this is a passing off case (in the absence of a registered trademark)

You should be able to get an injunction (a 'restraining order for business') and your solicitor will run you through what is needed to make a good case. Even by what little snippets you've posted, it sounds good already.

The difficulty, obviously enough, is whether the injunction will be enforceable in any way against a traveler.

Talk to your solicitor about joining the flyer/newspaper guy to the action as joint-tortfeasor: he might have got (and still take) the cash but he'll be enjoined from printing the ads, so he'll have some explaining to do to the traveller

You might not be able to stop the tortfeasor, but you should be able to do something about the joint-tortfeasor(s) if they are registered/legit businesses :cool:

thecleverone

Do up some flyers with testamonials on it from local people. Show people that you are legit and not this other eejit.

eoinhealy

Apip99 wrote: »

When I looked thru it, I was horrified to see a company calling them selves Delgany Landscapes. I called the number and the guy that answered the phone said he was Delgany Landscapes. When I explained who I was and that the company name is registered to me etc etc, he got a bit funny and changed his story, saying that his company is Delgany Paving

Was just on the CRO site. The other guy has no business registered under either Delgany Paving or Delgany Landscaping.

As far as I know it is against the law to trade under a name unless you registered it. The only way you can trade without registering is by using your own name.

So you have the upper hand I would say.

I am a landscaper to, sole trader, and I know it is not easy to build up a landscaping business from scratch. You really do have to put a hell of allot of time, money and effort it a Landscaping start-up. I hope this other guy does not do damage to your business, and good luck with it, I hope it all works out for you.

Regards

blue4ever

I have a lot of experience in the ‘publishing’ side of this equation.

Plenty of trades people randomly pick their names – some do it disingenuously using the name of an already established reputable company – which seems to happen in your case.

In reality and in my experience – the solicitors letter, whilst the correct approach, is wasting a stamp (but still has to be done). The root cause is the publishing of the advert.

Write to the ‘publisher’ and copy your business name cert with it. Tell him that you are the owner of that name and that if he publishes the advert again you will sue him of damages/loss of earnings. The publisher – once he knows these facts – has to comply.

I would also strong arm the publisher for an ad in ‘compensation’ (although he is not currently obliged to give you one).

One thing, a word to the wise – in your dealing with the publisher and the solicitor and even here – I would lower volume on the ‘ethnic background’ of the other company. Surprisingly a good solicitor acting on the other persons behalf could spin this to be racially motivated and you could end up defending yourself! It has been known.

If you need a dig out with the publisher – pm me and I will give you all the ammo needed.

Good luck in this