Got cease and desist for "similar" business name - do I have to rebrand?

I started a meal prep delivery service in Portland called "FreshPlate." Been operating for about 6 months, have a basic website, Instagram with 2K followers, about 150 regular customers.

Just received a cease and desist letter from lawyers representing "FreshPalate" - a meal kit company based in Boston. They have a federal trademark registered in 2022. Their letter says my name is "confusingly similar" and demands I stop using it immediately and transfer my domain.

The names aren't even identical! And we're on opposite coasts. Do I really have to change everything? I've spent $8K on branding, printed menus, van wraps, etc.

Unfortunately, trademark infringement doesn't require identical names. The test is "likelihood of confusion" - would consumers reasonably believe your businesses are related?

Courts look at several factors (the "DuPont factors"):

• Similarity of the marks (sight, sound, meaning)
• Similarity of the goods/services
• Strength of the senior mark
• Evidence of actual confusion
• Intent of the junior user
• Likelihood customers will bridge the gap (expand into each other's markets)

FreshPlate vs FreshPalate is pretty close phonetically. And you're both in the food industry. Those are two strikes against you right there.

But I did a trademark search before launching! Nothing came up for "FreshPlate." I even checked the USPTO database.

That's the issue - you searched for "FreshPlate" but trademark protection extends to confusingly similar variations. A proper trademark clearance search includes phonetic equivalents, common misspellings, and similar terms.

"FreshPalate" would have shown up if you'd done a comprehensive search or used a trademark attorney. The USPTO search tool only finds exact or very close matches.

Also important: did you file for your own trademark? Or are you just using the name without registration?

No trademark filing. I registered an LLC in Oregon and got the domain, that's it. Didn't think I needed a federal trademark since I'm just operating locally in Portland.

Oof. Yeah, you're in a tough spot. Even without federal registration, you'd have common law trademark rights in your geographic area. But their federal registration gives them nationwide priority from their filing date (2022).

Since you started in 2025, they have seniority. And federal registration creates a legal presumption that they own the mark and it's valid.

I've seen this happen to two restaurants I consulted for. Both ended up rebranding. One tried to fight it and spent $40K in legal fees before settling anyway.

You do have some potential defenses, though they're not slam dunks:

1. Geographic separation: You could argue there's no likelihood of confusion because you only serve Portland and they only serve Boston. But this is weak because: (a) you both have national internet presence, and (b) meal services can easily expand geographically.

2. Descriptive mark: "FreshPalate" is arguably descriptive for food services. Descriptive marks get weaker protection. But they did get it registered, so USPTO found it had acquired distinctiveness.

3. Different services: You do meal prep delivery, they do meal kits. There's some distinction there. But both are "meal solutions" - close enough that a court would likely find related goods.

Honestly? Your strongest position is probably negotiation, not litigation.

What kind of negotiation? They want me to stop using the name completely and hand over my domain. I don't see room for compromise there.

Possible negotiation points:

• Phase-out period: Agree to rebrand but negotiate 6-12 months to transition (so you're not eating the full $8K in sunk costs immediately)
• Geographic carve-out: Propose limiting your use to Oregon only with no online ordering outside the state. They might accept if they have no plans to expand to Portland.
• Domain buyout: Instead of just transferring the domain, negotiate a payment for it. If they really want freshplate.com, make them pay fair market value.
• Modification: Propose changing to "FreshPlate PDX" or "FreshPlate Portland" to add geographic distinction. Not ideal but better than full rebrand.

Many C&D letters start aggressive but companies will negotiate if you respond professionally through counsel. They don't want expensive litigation either.

One thing to check: look at their actual trademark registration. What's the filing date vs. registration date? What goods/services classes did they register in?

If they only registered for "meal kit delivery services" (Class 35 or 43) and you're doing prepared meal delivery, there might be enough distinction in the specific services to carve out space.

Also check if they're actually using the mark in commerce for those services. Sometimes companies register broadly but only operate in a narrow niche. If their registration claims services they don't actually provide, it could be vulnerable to cancellation.

Just checked their registration - filed June 2022, registered March 2023. Classes 29, 30, and 43. Covers pretty much everything food-related.

I hired a local IP attorney to respond. She said realistically I have maybe 25% chance of winning if this goes to court, and it would cost $75K+ in legal fees. Her advice is to negotiate a 9-month phase-out and start rebranding.

Brutal lesson learned: hire a trademark lawyer BEFORE you launch, not after you get sued. The $2K I saved by not doing it properly is now going to cost me probably $20K+ in rebranding.

Your attorney's assessment sounds reasonable. A 9-month phase-out is actually a decent outcome from a C&D situation. Many trademark holders won't agree to any transition period.

Silver lining: you caught this at 150 customers, not 15,000 customers. Rebranding now is painful but manageable. I've seen companies have to rebrand after raising Series A funding - that's when it gets truly catastrophic.

When you rebrand, do it right this time: comprehensive trademark search, federal registration filing, defensive domain purchases. And move quickly - the meal prep/delivery space is crowded and good available names are getting scarce.