Just because someone else is using your small business name, does not mean that you can’t use it. The other name must meet two tests:
- Popularity. The use of other name must be popular and
- Confusion. The use of the name by both businesses must be confusing to the public.
The first test requires that the previously used name must have acquired a "secondary meaning". A secondary meaning is acquired where by prior and continuous use of a name for a long period of time the public mind identifies the user of the name with the particular service or goods furnished by it, and thereby identifies the product by the name. So, it must be popular and known.
The second test that must be met is whether or not the later selection of such name is likely to deceive the ordinary customer, or lead him to believe that in dealing with the small business that used the name after the first business, he is actually transacting business with the first business to use the name. To make this analysis, a person needs to consider the types of businesses and the geographic areas that the two businesses are in. This becomes a facts and circumstances test and a good lawyer should be consulted to provide guidance in this case.
Even if you aren't trying to use the name of another business, these two tests apply. Even if you use your own personal name for the small business name, this may also apply (e.g., Tom Jones Car Wash), although the use of your own name as the small business name probably makes it easier to use.