What to name your business (copyright issues?)

I guess I'm finally throwing my hat in the ring, in an already crowded marketplace.

I just want to setup a wordpress site with prints for sale.

I'd like to just use my name "Nick Henderson Photography", but it looks like someone else already is using that :

https://www.facebook.c​om/nfotoNHP
http://nhendersonfoto.​wordpress.com/

Now this might seem like a dumb question, but does that mean I can't use the same name? Is it copyrighted?

Appreciate any help on this matter.

You can use your own name to promote yourself. If he is in the same area or same market, I would avoid it due to confusion. What if the other Nick Henderson gets arrested for child molestation or something. You don't want your business associated with that.

El Duderino wrote in post #16385054
Now this might seem like a dumb question, but does that mean I can't use the same name? Is it copyrighted?

I'm not a lawyer and this isn't legal advise. It is just what I have learned over the last 20 years working with intellectual property lawyers.

This isn't a copyright issue it is a trademark issue. The name/logo you use to promote your business is protected as a trademark. If someone working in the same industry/marketplace is already using that mark then it will have accrued protection as a trademark (even if it isn't registered) and you can't use it.

Industry - you are both photographers but are you competing for the same customers. If you shoot landscapes and he shoots weddings you are probably OK. If you are both landscape photographers then it would be a problem.

Marketplace - are you geographically close together and thus likely to be promoting your businesses to the same customers - bad. However, if you are in Denver and he is in Canada you are probably OK.

You would also have to ensure that your website and logo look nothing like his. If they are similar you could lay yourself open to a charge of "passing off" - trying to mislead customers into thinking you are the other business.

As with all such issues you should consult a qualified (intellectual property rights) lawyer.

Dan Marchant wrote in post #16385900
This isn't a copyright issue it is a trademark issue. The name/logo you use to promote your business is protected as a trademark.

absolutely true.

Dan Marchant wrote in post #16385900
If someone working in the same industry/marketplace is already using that mark then it will have accrued protection as a trademark (even if it isn't registered) and you can't use it.

not necessarily true.

there are likely thousands of "Smith Photography" businesses out there, even more specifically, many "John Smith Photography". One would have a difficult time registering that name as a protected trademark.

Now, if your name were "Neil van Niekerk" you would likely (whether the 'real' Neil van Neikerk has registered his name as a trademark or not) have a hard time getting away with naming your business with your full name.

In this situation the decision to grant the original owner protection under trademark law deals with the uniqueness of the name as well as the degree the name/business is established in the marketplace.

Dan Marchant wrote in post #16385900
You would also have to ensure that your website and logo look nothing like his. If they are similar you could lay yourself open to a charge of "passing off" - trying to mislead customers into thinking you are the other business.

True.

Dan Marchant wrote in post #16385900
As with all such issues you should consult a qualified (intellectual property rights) lawyer.

Probably true.

If it's just some guy operating in a specific small market you probably have nothing to worry about. If the person has been in business for 30 years and works around the globe you might just want to come up with an alternative.

here is some reading for you:

http://www.bitlaw.com …ark/degrees.htm​l#surnames

http://www.nolo.com …amily-name-trademark.html

http://www.uspto.gov …earch/refusal_g​rounds.jsp

before you make a decision, spend some time poking around the USPTO site.

Excellent advice, everyone. Thanks!