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I too am sorry to hear of this experience – and thanks Karen for bringing ‘it back up’ – I hope I can offer some food for thought – and certainly think you need to seek some additional advice on this one.
Is there anything in writing that confirms/suggests the name to be a part of the sale? Even if only your listing to him as to what your understanding is?
In terms of the domain and website transfer, most registrars will require him and yourselves to sign a proper transfer of ownership form. Do you have confirmation at this time that (a) the transfer has actually taken place and (b) that the renewal of the domain has occurred? If you are not sure, please let me know the domain name in question and I will see what I can find for you. Alternatively, you can search this yourself at ausregistry.com.au
Depending on the business name itself, and whether he will continue using/promoting the same name – you might consider, at least in the interim registering a new name in your state. If the name is ‘descriptive’ of the business – purely as an example “Adelaide Blacksmiths” then there is not really anything stopping you from acquiring a similar business name – eg: South Australia Blacksmiths.
Do you know if the previous owner had sought trademark protection on whatever the name is? (If you are not sure, please post the actual name and I will check for you – or send me a P.M with the details if you don’t wish to post them publicly).
If they have registered a trademark, this opens a new can of worms to look at. Trademark registration gives the owner the right to use and control the use of the particular name (or logo or phrase etc) that they have registered for particular goods/services. Your use of the same or confusingly similar name in the event they have a registered trademark could be an infringement of those rights, and needs to be considered further before you ‘launch’ under the same/similar name.
Further, if they do not have a registered trademark on the name, it’s not necessarily for him to ‘sell’ to other parties that may be interested. A trademark is an asset, which can be given an actual price/value – a business name doesn’t work this way. Usually, when the rest of the business has been sold, in the manner described the business name would be a part of it I imagine (this would need confirmation).
One of the main factors here is whether the ‘previous’ owner of the equipment/phone number/domain name/business name etc is planning to continue trading by that name or not.
I specifically disclaim the following as ‘for information purposes’, as its not my area and I am not a solicitor so can’t call this legal advice but the Business Names Act 1996 (South Australia) states that any changes, including when you cease carrying on business by a certain name, must be notified to the office within 28 days. If the commission has reason to believe business has ceased, they may write to the current proprietor with notice and allow them the opportunity to explain the situation and why the name should not be canceled – if they don’t satisfy the Commission with the reply, the name may be de-registered/canceled. There may also be fines/fees payable for failing to notify the Commission of either a cancellation or a new owner. (Again, they are to notify the Office within 28 days if there are new proprietors).
I would encourage you to visit: http://www.ocba.sa.gov.au/businessadvice/sale-small-business.html (This is information provided by the Office of Fair Trading for South Australia) – and will have other useful information for you.
Ultimately, I feel a letter from a solicitor should be sent, as this will likely carry ‘more weight’ – however, if you choose to write to him directly/yourselves – I would not mention the above regarding trading laws at this time. This may simply (depending on the type of character) entice him to start ‘trading’ by the name so that the Commissioner couldn’t find him to have ceased trading and have cause to de-register the name. I would leave it some what simple and to the point, in response to his email. – In any event, I would encourage you to check whether there is any trademark registration in place.
We refer to discussions between (your names) and yourself, by way of (telephone, face to face at your premises etc) on XXXX dates.
As per our discussions (and if applicable, any written documents, either drafted by yourselves and provided to him, or any he has provided) we have entered a verbal agreement that the sum of $XXX paid to you on (date) is in consideration for equipment, phone number redirection/transfer, website and domain transfer, business name transfer (and anything else agreed).
Accordingly, we do not consider that a further offer, over and above the sum paid and agreed upon is necessary nor appropriate. Please also be reminded of the time frame stipulated to enter changes of proprietors to avoid any late fees that may be imposed upon you by the Office of Consumer & Business Affairs (OCBA) in South Australia.
We hope that this matter can be resolved without needing to involve our solicitors, and in order to do so we ask that you provide, as a matter of urgency:
1. Written confirmation that domain name has been transferred and web hosting transferred
2. That phone numbers have been transferred/redirected to XXXXX
3. A copy of the change of proprietor form lodged with the OCBA
If the above is not received by
We continue to reserve our full rights in this matter until suitable resolution is reached.
Or, something to that affect!
As mentioned above, please fee free to contact me directly by email, or send a private message through Flying Solo if you don’t wish to post details of the name etc here and I will see whether there’s anything further I can suggest for you.
Please accept the above as information and general “food for thought”, and it is not to be accepted as legal advice. I believe that there are commercial solicitors also on this form (our area is Intellectual Property – trademark registration specific) who may see this thread and may be able to offer some more concrete/definitive advice for you.
All the best,