QUESTION

Can multiple companies use the same DBA name?

Asked on Oct 29th, 2014 on Business Law - California
More details to this question:
I had a restaurant and it closed due to problems with the landlord. During this time, the landlord was suppose to auction our things inside, but instead he signed a new lease with another party. This party took our name, our remaining tables, and now running the business with the original name as. I have no money to hire a lawyer so I was not able to continue the fight. I was just wondering if there's any way I can fight for my name back. The name of the restaurant is really know because my restaurant was more than 25 years and I bought it from the original owner.
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1 ANSWER

Appellate Practice Attorney serving New York, NY
Essentially, you are claiming is that the tenant has stolen your goodwill, an intangible asset.  Also, you appear to be claiming that, by virtue of the use of the restaurant trade name over many years, it obtained the status as a common law trademark, which the new tenant is infringing.  I assume that you never applied for a formal trademark registration; while such a registration would provide you with additional benefits above and beyond the benefits of a common law trademark, including additional damages which can be recovered for infringement, you can sue for infringement of a common law trademark.  The tenant may have valid defenses to such a claim, including defenses based on your "not being able to continue the fight" earlier, so I can't predict whether your suit would succeed.  Also, you would probably have to prove that the mark had obtained "secondary meaning" among consumers, meaning that consumers had come to associate the mark with your restaurant, and would be confused by the tenant's use of the mark into believing that they were dealing with your restaurant.  Consumer surveys are often required to meet the burden of proof on such a claim, and those surveys can be very expensive.
Answered on Oct 30th, 2014 at 12:58 PM

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