Company name v. sole trader 't/as' name

Not if you were first. The situation is that no-one is entitled to "pass-off" their business as that of someone else and ride on the back of someone else's established reputation to divert business their way. So, if your reputation extended significantly into their area then you could possibly prevent their use of the name. However, there is nothing they can do to prevent you continuing to use the name you have for so long.

If you think it's in your interest to stop the limited company from trading under what is effectively your name, then you should get your solicitor to write to them appropriately. You should also get a trade mark search carried out and oppose any applications they may have.

I agree with Norman - if anyone has a claim it's you and if you think that they might be out to damage your business you should take pre- emptive action ASAP. Just because the name wasn't already taken on the register of companies does not mean they are free to use it in direct competition with your established business.

Some general info:

I agree with the advice you have been given by other replies. The person forming a new limited company cannot have any name he wishes.

I suggest you look at -

which explains the restrictions on names for new limited companies.

NB Get objecting, asap

Thanks for those very helpful replies. I'm not so sure this company is even aware of my trading name, because the key word in their name (example: Silverdale Property Services) is also the name of the street in their address, so this is probably all just a coincidence.

However in view of my field of business, potential customers sometimes do a companies house search before dealing with me, and consequently I am starting to get queries about the claim on my website of being established in 19xx. That's how I discovered the limited company's existence.

Would this be sufficient grounds to make an objection?

I don't know the answer to that, but are you sure that this is the company name or their "trading as" name? If it's the former then I don't believe you can do anything about that, but you might be able to insist that they

You'll almost certainly need the advice of a solicitor over this, so really you'll have to weigh up the possibility of your business being confused with theirs against the costs of getting them to change theirs. In the meantime keep a record of everyone who is getting confused between the two businesses.

As far as I'm aware there's no law to stop them forming a limited company with a similar (or even identical) name to your business, however they're not permitted to trade under that name. If your business is 'Silverdale Property Services' then (as I understand it) Silverdale Property Services Ltd are OK to use that name for their limited company but not for trading purposes. They potentially may use 'SP Services' as a trading name, but not any name that is likely to cause confusion with an existing business.

If you can show that it's causing any confusion for potential customers then AIUI you have a cast iron case for passing-off. Even potential confusion gives you a sound case.

I'd suggest that you speak to them in the first instance, ask them to change the limited company name to avoid potential confusion - you may even point out that the confusion between the two business names may harm their own business. If they don't agree to change their trading style then see a solicitor.

I am not a lawyer however.

Hi again,

Accoring to one of the links I posted before:

"A claim may be brought where:

• the claimant?s goods or services have acquired a goodwill or reputation in the market and are known by some distinguishing feature;

• there is a misrepresentation by the defendant (WHETHER OR NOT INTENTIONAL) leading or likely to lead the public to believe that goods or services offered by the defendant are goods or services of the claimant; and

• the claimant has suffered, or is likely to suffer, damage as a result of the erroneous belief engendered by the defendant?s misrepresentation.

This restatement of the elements of passing off is often referred to as the "classic trinity".

NB the words in caps - it doesn't matter whether they intend to mislead the public or not, they are still commiting the tort of "passing off", you're likely to suffer damage as a consequence and you're within your rights to insist that they stop.

Cheers!

Martin

Thanks very much guys, your advice has been extremely helpful in clarifying the situation for me.

JamesT