opening a business that has closed

[GoTTi]

there is a business that has been closed down for a year or more now and i was interested in doing the business on my own, using the name and hopefully getting the business that it once had, including new customers.

it was a restaurant. what is the rule on that?

can i just open the doors up again, name the business the name of the business that closed down and not worry?

do i check the DBA registry? if it is available does that mean i can register the name for my business and use it?

thanks for the info.

[Evan]

Before taking the plunge, I'd look into the reasons the business closed down.

The equipment in the restaurant could still have a lien on it, and there may need to be a lot of work done to the building (perhaps that was part of the issue).

Do some research about the former business before considering opening the doors.

[Harold Mansfield]

it was a restaurant. what is the rule on that?

can i just open the doors up again, name the business the name of the business that closed down and not worry?

do i check the DBA registry? if it is available does that mean i can register the name for my business and use it?

thanks for the info.

If the previous owner didn't trademark the name, it's not a franchise or was owned by a parent corporation, and has let the DBA lapse then you could technically name it what ever you want.
I agree with Evan though, you may want to do some homework on why it closed. Could be that the name brings back a bad association and would kill you before you even launched.
for instance if the restaurant was linked to food poisoning incident or a double homicide...keeping the same name would probably be detrimental.

[GoTTi]

no the business was perfect. it was around for years, before my time i think and i am 27. the owner closed the doors for retirement, and he didnt sell the business off in time, so the restaurant had to be upgraded by the health departments request, and it wouldve cost way too much to do that so it remained closed for a long time before someone bought the property and tore it all down and made it into something else.

the business had a great reputation in the area, and alot of people were upset to see it go.

so from what i know on that end, where do i check if the business was registered and has lapsed? i am pretty sure the DBA has lapsed by now, it has been closed for about 2 or 3 years.

[Harold Mansfield]

Local county records are all public. You'd have to do a search there. Don't know where you are, but most larger metropolitan areas are all online now.
So I'm curious..is your intent to recreate the previous business, recipes, and all... or just piggy back off of the name?

[GoTTi]

ya my intent is to recreate the previous business and piggy back off of the business it is missing out on. a lot of people miss the restaurant that closed its doors, so i would like to cater to them.

[Spider]

Unless the rules have changed, and this may not be the same everywhwere, but in Houston, Assumed Names (DBAs) are not exclusinve. You apply for a name, they check to see if anyone else is using that name and tell you if they are, you can then change your application or can proceed with the duplicated Assumed Name. If that is the same in your jurisdiction, you have no need to find out if the old name is "available." Just go along to your County Clerk's Office, Assumed Names department and record it.

[Harold Mansfield]

Here is NV it's similar, but is specific to the type of business. For instance there are a thousand businesses called "Silver State..." something or another just as I'm sure TX has 1000 businesses called "Lone Star.." something. You just can't have 2 similar businesses taking the same designation....so there can't be 2 mining companies called "Silver State"..for instance.

[GoTTi]

i checked the TM office and the business TM was registered there 2 times.

example of the TM registerations:

1. Example (Live)
2. The Example (Dead)

I am interested in the Dead example. they are both registerd with the same name, just the "The" one is now dead. So would i be able to register the TM for "The Example" and start the business?

Even though example 1 is Live, the business is no longer open, and hasnt been for like 3 or 4 years.

[Spider]

TM (I presume you are talking about Trade Mark) is not the same as a DBA (Doing Business As - more properly known as an Assumed Name.)

[Harold Mansfield]

Whether or not the business is open has no bearing on ownership of the Trademark. Also, it will depend on the context that you are going to use it. If the Trademark is for a restaurant, and the Trademark is still valid/enforceable then you may have a problem..but like Spider said, TM and DBA are 2 different things. DBA's are usually issued on a county or state level, however, the trademark owner could try and enforce it if they know about it.

The easiest way to get found out is by registering a domain that contains the name and building a website on it.

If you see that someone has the name trademarked for a restaurant..I wouldn't go forward using the same name unless you can either purchase it, wait for it to expire, or come to an agreement with the owner because at this point you can't claim ignorance...and that's not a defense anyway.

[Business Attorney]

Whether or not the business is open has no bearing on ownership of the Trademark.

Actually, that is not true.

If a trademark is abandoned by its owner, someone else is free to use it. A number of well known trademarks have been abandoned and later used by someone else.

Abandonment is a legal concept, but it is primarily a question of fact. Whether any particular period of inactivity constitutes abandonment is hard to say. If there is a dispute, a court would have to look at all the relevant facts, including the reasons for the inactivity and any steps that the original owner might be taking to keep the trademark alive.

[Harold Mansfield]

Actually, that is not true.

If a trademark is abandoned by its owner, someone else is free to use it. A number of well known trademarks have been abandoned and later used by someone else.

Abandonment is a legal concept, but it is primarily a question of fact. Whether any particular period of inactivity constitutes abandonment is hard to say. If there is a dispute, a court would have to look at all the relevant facts, including the reasons for the inactivity and any steps that the original owner might be taking to keep the trademark alive.

That's interesting. How can anyone determine abandonment? I thought that trademarks were issued for certain amounts of time. Once I pay for it, can't I hold it to deter others from using it?
Do I have to use it to continue my ownership claim?

[Spider]

I thought Trade Marks were timeless - ie. not "issued" for a specific period. I thought trade marks were like copyright - they were yours by use and not by registration. Registering made sense insofar as to establish ownership, but ownership - and enforceability - are automatically yours without registratiion.

Is that not so, David?

[Business Attorney]

That's interesting. How can anyone determine abandonment? I thought that trademarks were issued for certain amounts of time. Once I pay for it, can't I hold it to deter others from using it?
Do I have to use it to continue my ownership claim?


I thought Trade Marks were timeless - ie. not "issued" for a specific period. I thought trade marks were like copyright - they were yours by use and not by registration. Registering made sense insofar as to establish ownership, but ownership - and enforceability - are automatically yours without registratiion.

Is that not so, David?

Trademarks can be lost for a lot of reasons.

Abandonment is one. If you fail to use your trademark, it can be deemed abandoned. When does that happen? You have to look at all the facts and circumstances. Over the years, a number of well-known trademarks have been abandoned by their owners and picked up by someone else. An interesting article on the subject can be read here (http://www.finnegan.com/resources/articles/articlesdetail.aspx?news=408a5bd2-a74e-4152-ba14-95e055b2ed3f).

Many trademarks have been lost because the owner allowed them to become generic. Aspirin, cellophane, thermos, zipper and many other words were originally trademarked terms that now are unprotected.

@Spider: you are right that common law trademarks are not dependent upon registration, but you don't complete the connection. The trademarks come into existence based on use, but their continued existence is ALSO based on use. If you stop using them, and they become abandoned, then you can no longer keep someone else from using them.

I will try to write up a more complete explanation over the next few days.

[GoTTi]

@David: so real quick then, the issue i am looking at is a business that is closed and has been closed for about 3-4 years has 2 registered trademarks. we can call them example and the example.

example is LIVE
the example is DEAD

according to the trademark search engine.

on the los angeles DBA website, neither is registered with the system LADBA

so does this mean that i can goto the local court, register the DBA, then turn and register THE EXAMPLE, the dead one, and open up the business and not have to worry that EXAMPLE is still live with the TM system?

thanks for your help.

[Business Attorney]

@GoTTi: I can't comment on your specific facts since that could be construed as giving legal advice rather than providing general information. I will say that the question of abandonment requires looking at ALL the facts, and even possibly delving into the intent of the trademark owner. For example, due to the fact that it has only been closed 3-4 years, if the owner established that he was looking for a suitable spot to open again, then I suspect many judges would conclude that the mark had not been abandoned, but was simply temporarily not in use. In other words, merely ceasing to use the mark for a period of time does not necessarily mean that the mark has been abandoned.

Conversely, the fact that the registration for a mark is still live does necessarily mean that the mark is valid. It is certainly prima facie evidence of the validity of the mark, but you still might be able to prove that it was abandoned.

If the EXAMPLE version of the mark is live and not abandoned so that using EXAMPLE would be trademark infringement, then it is almost certain that using THE EXAMPLE would be infringement. Adding words before or after a valid mark typically is still infringement of the mark.

[Businessfirst]

there is a business that has been closed down for a year or more now and i was interested in doing the business on my own, using the name and hopefully getting the business that it once had, including new customers.

it was a restaurant. what is the rule on that?

can i just open the doors up again, name the business the name of the business that closed down and not worry?

do i check the DBA registry? if it is available does that mean i can register the name for my business and use it?

thanks for the info.

There a re a host of legal issues that could prevent you from doing this. Like some mentioned, the name and if it is trademarked. Also, would you be changing the menu etc because a lot of that could be intellectual property. I recommend a good amount of research on these subjects before going for it. Restaurants are a tough business.

[Reflo Ltd]

First, you can check for federal trademarks at the USPTO website.

However, the problem that comes to mind might be defending a lawsuit regardless of the trademark status. You intend to basically copy a closed business that was successful for many years. I can see the previous owner or their family suing for this.

You might want to contact the previous owner and tell them your intent and see if they might be interested in selling rights to the name and recipes or maybe even helping you along, especially if the recipes are important to your success. It could be a small investment in avoiding more headaches later.... even if you are within your rights to use a name and recipes you may still have to prove that in court.

This is just my gut feeling and it has no basis in law