# Is there anything I can do about a business opening under my old business name?



## Judith (3 Sep 2011)

Hi All,
I'm new to the site and would greatly appreciate any advice you could offer. 

In 2008 I opened a business as a sole trader, which for various reasons closed in May of this year. Upon telling my landlord that I had no choice but to leave, he reacted very badly and changed the locks on the premises and stood over me (and a team of volunteers!) for five hours as I cleared out my belongings. At the time of closing I owed him one months rent. I apologised and explained that I knew I had no hope of being able to make it, so instead of becoming more indebted to him, I forfeited my deposit, which was to the value of 2.5 months rent. Despite being put under pressure, I managed to take everything that I owned except my business sign, which cost me €380. This was merely an oversight on the day.

Last week I was informed that the landlord had secured a new client. To be honest, I genuinely wished them the best. A few people had approached me and asked if I was reopening, which surprised me a little until I opened the local paper yesterday. There was an ad stating that my previous business (the exact same name) was reopening under new management. The design of the ad was practically identicial, to one I had a graphic designer submit to the paper on my behalf, some time back.

My question to you is this; can the new business owners trade under a name I have registered with CRO? Can I do anything to prevent them advertising in the manner in which they have? Am I within my rights to ask for my sign back? There's a large festival coming up in the town, at which my business had historically done very well. I feel that the new owners are planning to cash in on the goodwill I had built up.

I have a new business(different industry) in the same town and I dont want to be associated with the old one any longer. 

Sorry that this is so long winded, but I dont where else I can get independent advice on the matter. Thanks.


----------



## Brendan Burgess (3 Sep 2011)

Registering with the CRO has very little significance. 

If you have a shop called "Judith's cheeses" , someone else can't open a shop in the area with a similar name as it would be regarded as "passing off" - hoping to get benefit from pretending to be associated with you. 

I am not sure if the same rule applies if you are no longer in business or if you don't intend to set up in business again. 

In practical terms, this is not doing you any damage. 

What sort of lease did you have? Did the landlord agree not to pursue rent until the end of the lease? It seems to me that you have gotten away from this fairly lightly. I would just wish the new traders good luck.


----------



## J.Ryan (3 Sep 2011)

You could set up a limited company with your former trading name, then get a solicitor to get the new trader to cease and desist (I think thats the term) using that trading name.  

It would be a bit expensive and if you're not going to use that name again in the future, it might be a waste of money. If you are not going to use the name again, why would you need the sign?

An alternative would be to stand in front of the shop declaring that you have no association with the business inside that is using the name you traded with, however they are clearly stating under new management (according to your description of the advert in the paper).


----------



## jhegarty (3 Sep 2011)

Do you own the copyright for the company logo ?


----------



## Brendan Burgess (3 Sep 2011)

> You could set up a limited company with your former trading name, then  get a solicitor to get the new trader to cease and desist (I think thats  the term) using that trading name.



I can't see how this would help at all. You have to prove to the court that you are using the name and that someone else's use is damaging you. You can't just set up a company under that name to claim it. 

But I stress. Talk to your solicitor.


----------



## Judith (3 Sep 2011)

Thank you all for your replies. 

While I will not be re-opening under the name in the current town, there is a possibility of me doing so elsewhere. I genuinely believe that the association would damage my reputation. While I do not wish to cause problems for the new owners and do wish them well, I want to protect what I have worked for these past years. As you correctly mentioned, the ad in the paper does state that the business is under management, but because of the design used it has misled people into believing that I am still in the driving seat.

The business didn't have a logo as such but it did have a strong design that I would have used on branding, stationery & advertising etc. To answer the question though, no I do not have any copyrights.

While in my new business today, I received alot of enquiries in relation to the re-opening of the previous one. People in town very much believe it is me. I'll take your advice and have a quiet word with my solicitor on monday.

Again, thank you all sincerely for your replies


----------



## J.Ryan (4 Sep 2011)

Brendan Burgess said:


> I can't see how this would help at all. You have to prove to the court that you are using the name and that someone else's use is damaging you. You can't just set up a company under that name to claim it.
> 
> ....


 

The Name of  a company which is a seperate legal entity supersedes that of a business name.

same way that I can't trade as Enda Kenny (unless my own name was Enda Kenny)


----------



## onq (4 Sep 2011)

J.Ryan, are you suggesting that a sole trader using a registered business name could see someone using the same name as a company name and have little or no recourse?


----------



## J.Ryan (4 Sep 2011)

Yes,  a limited company can take an action to the Registrar of Business Names and get a name cancelled,  now there may be a time limit on this, but I remember it from college, we were told to set up a limited company in that name (even if trading as a sole trader) to prevent lose of use of the sole trader  trading name.


----------



## oldnick (4 Sep 2011)

If a legal entity  (sole trader ,ltd company whatever) registers a name  - Ploppy Goods - it gives no automatic protecion against duplication. 

But if that trade name,Ploppy Goods,  becomes well established and someone else  registers a company Ploppy Goods Ltd and uses the name Ploppy Goods on its products, then is it not the case that the original trader using the name Ploppy Goods can take an action for "passing off" ?   

(This does not apply in the OP's case. There is no harm being done to OP becauise Op is not using that name.)


----------



## TreeTiger (4 Sep 2011)

Judith said:


> ... no I do not have any copyrights.



Yes you do.  From the Patents Office website:

_Copyright is a property right and the owner of the work can control  the use of the work, subject to certain exceptions. The owner has the  exclusive right to prohibit or authorise others to undertake the  following: _


_copy the work_
_perform the work_
_make the work available to the public through broadcasting or recordings_
_make an adaptation of the work. _
_Copyright  takes effect as soon as the work is put on paper, film, or other fixed  medium such as CD-ROM, DVD, Internet, etc. No protection is provided for  ideas while the ideas are in a persons mind; copyright law protects the  form of expression of ideas, not the ideas themselves._


Here's a link to the page.


----------



## oldnick (4 Sep 2011)

Judith - I  revise my final sentence  in my post that no harm is being done to you because of new tenants use of name,sign etc. 

 If you can show that your business was trading profitably (you don't say why you closed) and that you intend within a reasonable period to continue the same trade elsewhere then it could be argued that there is an element of "passing off" by those new tenants. That is, they are exploiting your goodwill and thus causing you harm/loss.

Your main obstacles are 
- the new tenants state "under new mngt".
- it's been six months since you last traded. 
- if you had a lease, the landlord could have been much tougher. He could argue -untruthfully, but who can prove it -that he let you off the lease in consideration for the name, sign etc.
- lawyers cost money !

Anyway, a clever lawyer's letter won't cost that much and may do some good.
Good luck and please advise us what happens.


----------



## Judith (5 Sep 2011)

Thanks to you all again for your comments.
I have someone looking into it for me and I will definitely let you know how I get on.

Oldnick-The business was doing ok, but I was never going to make a fortune in this particular town. There were a few deciding factors in my decision to close, but a big one was my landlord. He refused to carry out _*essential*_ maintenance works and this I can prove. I see your point that it is my word against his regarding the lease, even though at the time of leaving we were both in breach of that agreement.

The new tenant as you say, did mention that the business was re-opening under _new management,_ but due to the name and design of the ad etc, I feel it is purposely misleading. Having said that, I've never seen an advert saying "under new ownership", so maybe its just not the done thing!

I ceased trading the end of May though so not quiet six months, and yes lawyers are expensive!

Treetiger-thats very interesting regarding the copyrights-I must look into it.

I'll keep ye posted.


----------



## Judith (13 Sep 2011)

Hi All,

Just wanted to let you know how I got on. 
My solicitor did indeed say I had a case-"passing off" as mentioned here. The new tenants were contacted and they've changed the name. Also the local paper, having admitted to using my original ad, printed a note this week saying I was no longer involved.
Thanks again for all your help.


----------



## onq (16 Sep 2011)

Thanks Judith.


----------

