Copy cat in the yellow pages

[Kevin VanderWarf]

I decided last year to skip the yellow page add. It was not a bad year, I did better actually without it.


My company name is Palmetto Home Inspections. I chose this name becuase at first I didn't know how far my area would extend. Since S.C. is known as the Palmetto state, I thought this would be a good state wide name.


I searched the web, yellow page listings, brochures in Realtor offices and last but not least the list of licensed HI s for the entire state at the time.
I found one guy in the up state with a similar business name who had not renewed his license in a couple of years. This was back in 2000.


Just got new phone books yesterday. Some guy has a listing in the yellow pages with the business name "Aiken Palmetto Home Inspections". I searched the S.C. Residential Builders Commission licensee look-up page and could not find a license number. He does not list a lic. num. in his add, which we are required to do. He doesn't list a name, address or a land line number. He does list what looks to be a cell phone.


What I'm affraid of is that my word-of-mouth clients are going to recommend thier friends call Palmetto Home Inspections and their friends are going to find this guy in the phone book and assume it is me.
What can I do?
BTW. the S.C. RBC says that such an inspector needs to be caught in the act, working with out a license. Should I borrow a vacant house and set him up or what?


Part of the reason I stayed out of the yellow pages last year is becuase Bell South did not seem to care that they had 3 un-licensed inspectors advertising with them. This guy makes 4 and he's stolen my freakin name.
This really pisses me off. Why can't people pay their dues and have some degree of ethics like the rest of us?

[Kevin VanderWarf]

Interesting, if this guy were to google " Aiken home inspector" there's a lotta crap on the first page but I come up on the 2nd.
If he were to google "Aiken S.C. home inspector" there I am at the top of the page.
And, if he were to google his own company name "Aiken Plametto Home Inspections" I take up almost the entire page.
How stupid is that? He's really screwing himself up and me along with him.

[Bruce Breedlove]

With a good lawyer and a bundle of money you might be able to get him to back down for infringing on your trade name. (Possible but not likely.)

In my city we have a garge door company that has been around for many years - Overhead Door. Now we have:

American Overhead Door
Pikes Peak Overhead Door
Colorado Rockies Overhead Door

If Overhead Door has been unable to stop newcomers from playing off their name I doubt you can stop your interloper (unless you have deeper pockets than Overhead Door).

[Kevin VanderWarf]

But Bruce, He's working here illegally.
Now, that redundant statement in today's society makes it sound like it's ok.
Maybe your right, I have no course of action.

What gets me, is who would what to start a business under the shadow of another.
Good point on the name though, I guess we allow the term "home inspection" to be used in almost every name in our industry. But, there should be a word in a business name that stands as a signature, that separates one business from another. For the same reason you will never order a Whopper from Mcdonalds, or a Big Mac from Taco Bell.

[Scott Patterson]

Have you called the number to see if he is still in business? Chances are that he went out of business before the new books came out. Not much can be done now that the books are on the street.

[Jerry Peck]

Have you called the number to see if he is still in business? Chances are that he went out of business before the new books came out. Not much can be done now that the books are on the street.

Except ... *IF* he went out of business, the phone company may allow you to get that number and have it come in on your line as a ring master (probably not though, not unless you are willing to pay for that ad - depends on 'how much this irks you').

I'm guessing that if he went out of business, and if you are willing to pick up the tab for that ad, the phone company 'will be more than happy to give you that number'.

[Kevin VanderWarf]

Ah, but the number is a mobile. No number that would connected to the phone book is listed. But would the guy give up a cell number, just because he went out of business?
Anyway, out of professional courtesy, I thought I would wait until Monday morning to call, stupid I know but you know what I mean.

[Jerry Peck]

Ah, but the number is a mobile. No number that would connected to the phone book is listed. But would the guy give up a cell number, just because he went out of business?
Anyway, out of professional courtesy, I thought I would wait until Monday morning to call, stupid I know but you know what I mean.

I'm guessing that phone number is no longer in service.

That's the only way yellow page companies can 'control' their default rate. You 'don't pay' for the ad (whether you go out of business or whatever reason), I suspect you lose the number that is associated with that ad. Think of it as a lien placed on that phone number.

When you called him this morning, was the number in service? Was he still in business?

[Kevin VanderWarf]

I hid my number and called the guy, I got voice mail, didn't leave anything. I sent the info below to a fellow at the BBB, who sounds real interested in looking into this. I may back off until I hear back from him.

Everything you see is what is in this guys add. I withheld the phone number and the web address. The thing that stuck out to me is the ASHI part along with the lack of a lic.number. Would ASHI approve of this if you haven't even complied with your own state's ad standards?

Aiken Palmetto Home Inspections
Professional Guaranteed Inspections
22 Yrs. Experience in All Aspects of Home Construction
Heating and A/C E.P.A. Certified Tech
Re-inspection After Repairs
On-site Computer Reports w/ Digital Pictures
ASHI Standards and Ethics Compliant
Weekends Available
Licensed and Fully Insured In SC
……………………… 646-9....

[Jerry Peck]

I sent the info below to a fellow at the BBB, who sounds real interested in looking into this.

To the Better Business Bureau?

Why not to the state licensing board?

[Kevin VanderWarf]

Well, last year I noticed that we had three inspectors that displayed no license number and provided no info in their adds that linked them to a license number.
I asked the commission about it about it and they did express concern but told me that the inspectors would have to be caught in the act of actually performing an inspection in the state without a license.
Well, those same guys are back, the guy who has stolen my business identity makes number 4.
I have notified the commission again this year, the BBB is just another avenue. I don't know if this goes on in other areas, but when I decided to become an HI, I called all over and found out exactly what was required.
When I met those requirements as was told that I must list my license number in any add or publication. I'm just a little sick of paying my dues and palying fair while these few slip by.

[Jerry Peck]

When I met those requirements as was told that I must list my license number in any add or publication.

Find out if they are written in the law or rule, if so, then file a complaint.

*IF* written in law or rule, the mere *fact* that the ad is published and that it contains no license is not only 'evidence' of the unlawful act, but is 'proof' that such unlawful act took place.

It is possible that it 'is not' a real requirement and that you were misled (when is the last time a public servant misled anyone)? ;)

[Scott Patterson]

If the commission in SC is going to not even investigate, then I would say the heck with them and go to the Big Dog! Go to the States AG and their consumer fraud division. I bet that they would love to say Hi to this guy for saying he is licensed when in fact he is not.

[Jerry Peck]

I bet that they would love to say Hi to this guy for saying he is licensed when in fact he is not.

Scott,

But he *might* be licensed.

That is the first thing which needs to be verified, then it needs to be verified *IF* there is a requirement for including license numbers in ads and other things.

[Kevin VanderWarf]

Jerry, I knew I was gonna have to dig this up, I'm glad I did.

I'm just gonna call them all out on this and push it until something is done.

Your are correct they may in fact be licensed but at least 4 of them are in direct violation according to these standards.


M) ADVERTISEMENTS
1. For the purpose of this section, advertisements include, but are not limited to,
inspection reports, business cards, invoices, signs, purchased telephone
directory displays and advertising by newspapers, radio and television.
A. Advertisements by a person licensed as an Inspector should contain
the Inspectors name, the business name, address and license number
of the Inspector.
B. The Commissioner may reprimand, suspend or revoke the license of a
person who is found to have engaged in false or misleading advertising
or to have failed to comply with provisions of this section.
C. Any Inspector who moves is required to keep the Commission
informed of any change of address.

[Jerry Peck]

I'm just gonna call them all out on this and push it until something is done.

Yes, you are.

[Jack Feldmann]

Kevin,
First thing - just saying he is compliant with ASHI sop's does not say or mean he is a Member of ASHI. ANYONE can say they meet ASHI Standards.

Next - The regs you printed say "should", not MUST for placing the license number in ads. He may not HAVE to put his license in the ad.

Of course, I do agree that you should take this to the big dogs and quit messing with the BBB.
Good luck
JF

[Jerry Peck]

I looked up "should" on the Merriam-Webster Online dictionary and this is what it returned:

should

3 entries found for should.
To select an entry, click on it. shallshouldwho Main Entry: should http://m-w.com/images/audio.gif (http://javascript<b></b>:popWin('/cgi-bin/audio.pl?should01.wav=should'))
Pronunciation: sh&d, 'shud
Function: verbal auxiliary, past of SHALL (http://m-w.com/dictionary/shall)
Etymology: Middle English sholde, from Old English sceolde owed, was obliged to, ought to
1 -- used in auxiliary function to express condition <if he should leave his father, his father would die -- Genesis 44:22 (Revised Standard Version)>
2 -- used in auxiliary function to express obligation, propriety, or expediency <'tis commanded I should do so -- Shakespeare> <this is as it should be -- H. L. Savage> <you should brush your teeth after each meal>
3 -- used in auxiliary function to express futurity from a point of view in the past <realized that she should have to do most of her farm work before sunrise -- Ellen Glasgow>
4 -- used in auxiliary function to express what is probable or expected <with an early start, they should be here by noon>
5 -- used in auxiliary function to express a request in a polite manner or to soften direct statement <I should suggest that a guide...is the first essential -- L. D. Reddick>
shall

3 entries found for shall.
To select an entry, click on it. shallshouldwho Main Entry: shall http://m-w.com/images/audio.gif (http://javascript<b></b>:popWin('/cgi-bin/audio.pl?shall001.wav=shall'))
Pronunciation: sh&l, 'shal
Function: verb
Inflected Form(s): past should http://m-w.com/images/audio.gif (http://javascript<b></b>:popWin('/cgi-bin/audio.pl?shall002.wav=should')) /sh&d, 'shud/; present singular & plural shall
Etymology: Middle English shal (1st & 3d singular present indicative), from Old English sceal; akin to Old High German scal (1st & 3d singular present indicative) ought to, must, Lithuanian skola debt
verbal auxiliary
1 archaic a : will have to : MUST (http://m-w.com/dictionary/must) b : will be able to : CAN (http://m-w.com/dictionary/can)
2 a -- used to express a command or exhortation <you shall go> b -- used in laws, regulations, or directives to express what is mandatory <it shall be unlawful to carry firearms>
3 a -- used to express what is inevitable or seems likely to happen in the future <we shall have to be ready> <we shall see> b -- used to express simple futurity <when shall we expect you>
4 -- used to express determination <they shall not pass>
intransitive verb, archaic : will go <he to England shall along with you -- Shakespeare>
usage From the reams of pronouncements written about the distinction between shall and will--dating back as far as the 17th century--it is clear that the rules laid down have never very accurately reflected actual usage. The nationalistic statements of 18th and 19th century British grammarians, who commonly cited the misuses of the Irish, the Scots, and occasionally the Americans, suggest that the traditional rules may have come closest to the usage of southern England. Some modern commentators believe that English usage is still the closest to the traditionally prescribed norms. Most modern commentators allow that will is more common in nearly all uses. The entries for shall and will in this dictionary show current usage.

Thus, it seems, "shall" is present tense, i.e., "YOU SHALL DO IT" and "should" is past tense, i.e., "YOU SHOULD HAVE DONE IT THAT WAY".

Thus, they "should" have included their license number, but did not, now they "shall" be fined. ;)

[Stuart Brooks]

Have you thought about registering a Trademark? The fee for a text trademark search and registration isn't real expensive. Now, they charge a bundle for a graphic application, like a logo design. There are online services that will handle all the paperwork for you for a reasonable fee. I looked at Intuit and the best I recall is that it would cost a total of $315 to register a text trademark. I think I will go for it because I already found another "Virginia Inspection Service, LLC" that popped up in another area of the state.
Stu

[Jerry McCarthy]

Tagging on Jerry P's "should" and "shall." Checking Fowler’s Modern English Usage:
"Should" = ought to; should have; should know; etc.
"Shall" = will
"Shall” is the better choice, which as you all no doubt know is why all of our codes books choose it over “should.” Semantics can be extremely vital, especially in written inspection reports.

[Eric Shuman]

In Texas when I started my company I filed a DBA ( Doing Business As) name (my business name) with the county. This required me to search at the records office to make sure the business name was not already being used by someone else. I did this at the County Clerk's office. Not sure if it's the same where you are but may be worth a try.

Eric

[Brandon Chew]

Next - The regs you printed say "should", not MUST for placing the license number in ads. He may not HAVE to put his license in the ad.

Jack has it right. Whoever wrote those regs goofed. They should have used "shall". They probably intended to use Jerry P's definition 2a&b of shall:


2 a -- used to express a command or exhortation <you shall go> b -- used in laws, regulations, or directives to express what is mandatory <it shall be unlawful to carry firearms>
Should is a weaker word, and leaves room for people to argue that it is not mandatory. Because the word should is in there, going after him for not having his license# in the ad is a weak case. If the state comes after him and he has a good lawyer, the state will probably back down. Then they'll change that "should" to "shall" in the next revision of their regs so they'll have some teeth.

Twenty one of my years of engineering experience was in a gubmint regulatory agency where, among other things, I performed inspections, wrote, reviewed, and interpreted regulations, and was involved in compliance and enforcement.

It's not my area of expertise but I think you have a strong case for going after the guy for infringing on your trade name. If you can show you were doing business under your name before he was doing business under his, you've established some common law rights to that name even if you did not register it. Talk to your lawyer about it. If he got a letter from your lawyer demanding him to cease & desist, it might be enough to cause him to change his name to make it go away (especially if he's just starting out -- he's cash strapped). This might be all it takes to resolve it; if not, it's up to you how much more you want to invest in legal fees to pursue it.