Need some advice and opinions please

[RememberThis]

Hi All

Well, unfortunately it appears we have royally screwed up :(

Due to inexperience in business on our part, our business name Remember This Photography was never registered. It was registered as a Sole Trader 5 years ago under Brett's name, with "Remember This Photography" listed as the Trading Name. Was under the assumption it was registered, not aware it had to be registered elsewhere.

Fast forward to a few weeks ago, got a phone call from a potential client who said we did a photoshoot for a friend of theirs and they wanted one also. We never did the shoot for their friend and could not understand where the confusion was. We got a similar phone call on Sunday, so we thought we should look into it a bit further.

Today we discovered a business has set itself up in a neighbouring suburb (as in like 10 mins from here) using our name about 6 months ago. Looking further into it, we find out that they have registered our name with ASIC which we failed to do, and therefore the name now belongs to them, even though we have been trading as this name for the last 5 years. They can potentially sue us for using our own business name.

From what we can establish, we now must change our business name. If anyone on here knows anything about if there are other possibilities legally, we would love to hear from you.

We are looking for opinions now, on what we should change our name to. The way we see it, we have two options:

Option 1:

Change the name to something very similar, as we are currently more established than them under that name (for example, Remember This Photography Sydney or Remember This Photography and Video (as we have been doing some video work as well))

Option 2:

Change the name completely, re-vamp website and create a whole new image. We would keep our domain names for a little while to redirect current clients to the new one and state "Formerly Known as Remember This Photography". We would attempt to notify all past clients of the name change.

So, what would you do?

[mongo]

Sorry to hear this. It is a substantial problem.
Can Mongo start by saying that you have a very substantial investment in your name, product, clients etc. On that basis, it would be very wise to get some professional advice as soon as possible rather than seeking general advice on AP. This is a very specific area of law and business and you should get specific advice BEFORE you do anything else and as soon as possible.
Mongo knows nothing of this areas but would hazard a guess that it may be imprudent to assume you can re-name your business as you have indicated above. Those proposed names may still offend the rights of the person who now "owns" and uses the name "remember this". There may be issue of similarity and other aspects of naming your business that you need to get advice about.

Mongo very much likes your excellent work and wishes you the best in continuing it with certainty and success.

[WhoDo]

*OPINION ONLY*

Don't waste time chasing your investment in a name you no longer have the exclusive right to use. You will spend more time, money and energy than you can afford and may still end up where you are now.

Your clients are the important asset. THAT, not your name, is the basis of your business good will. Contact each and EVERY client, past and present, and advise them of your situation. Explain that you intend to make a fresh start under a completely new, registered AND Trade Marked business name and logo.

Registration of the business name alone (new or old) means nothing unless you are prepared to go to court to defend it. Only a registered Trade Mark has the maximum protection under law AFAIK. I had a registered business name and copycats started trading under that name. I could do nothing about it without spending big bucks I didn't have in court. Even then I stood to lose on the basis of different business "emphasis", location and/or logo. pfftttt! It's all about the lawyers!

To be brutally honest, the NAME isn't worth the effort; only the REPUTATION it carried is! Guard that by making sure your clients and their friends aren't blindsided by this situation. Make sure they come back to YOU on the basis of reputation, nothing else.

[Wayne]

Be aware that ASIC and state business name registration authorities will not register "like names" that may confuse.
The other important thing is that although you have been trading under that name for a period of time while registration was current, you ceased to hold that name and the right to trade under it the day following the lapse of registration, so it would seem from your comments you breached law, by carrying on a business without having a regd business name applicable to that business or an incorporated entity.

Registration of any business/company name is paramount if you intend to continue trading....The law here is pretty clear in that you would have no right to recover that name if another person/company registered it after your registration expired. trade practices act or similar in your state may offer something relating to the "passing off" legislation, but I doubt it.

[rooboy]

I have to agree with Whodo

[OzzieTraveller]

G'day RTP

Gotta agree with whodoo & mongo here ... but a suggestion also

When I was registering my business name(s) with both internet names & the ATO [ie- not asic as I am a sole trader], it was put to me that the most important thing to me as a sole trader was "my name". ie- no-one can pinch it

So I have "phil jones's travelling school of photography" - and while there may be other "phil jones's" out there, there cannot be another phil jones's travelling school of photography

You may like to consider [after the above legal advice] registering yourself as "your-name(s) photographic memories" or some-such
Regards, Phil