Saturday, October 11, 2008
Hello All!
I am located in California and I am in the process of establishing my first LLC.
I have used my state’s Corporation Name Availability search tool and have found that my desired business name is not taken as an LLC.
However, I have found that my desired business name is taken as an INCORPORATED company.
Would I still be able to form my LLC using my desired name, without getting in any kind of legal conflict?
Thank you in advance!
Jeff Mac
most states will not register two entities with the same, or substantially the same, names. Doesn’t matter corp, LLC, foreign, domestic or what.
most will also disallow any deceptive names. For example, even though The Coca Cola Company isn’t registered in your state, they still will not allow you to form that company.
you’re probably going to have to pick another name.
Monday, October 27, 2008
Hello,
Thank you for the response.
I just received a letter from the State of California, Secretary of State, Business Programs Division, stating that the name I requested is successfully reserved.
As stated before, my company name is already taken as an INC., but not as an LLC. For example: “Example Realty, Inc.” is already taken, but “Example Realty, LLC” is available.
Should I move forward and establish this LLC since it seems that the state of California has allowed me to reserve and proceed with my entity filing?
Thank you in advance!
Sincerely,
Jeff Mac
The new name would be considered deceptive by the CA Secretary of State. Even if they did allow it, you have trade/service mark issues.
Monday, October 27, 2008
Thanks again for the responses!
I just called and spoke with someone from my state business program division and was told that in California, it is completely legal to have the same name as long as they are different entities (ie Inc vs LLC).
I had to double check and make sure I understood her correctly and she did confirm that it would be fine for me to move forward.
Should I take her word for it? She should have a good understanding of our state laws right?
Or should I contact a knowledgeable lawyer?
I’m very excited to move forward and start up my LLC, but I definitely do not want any future legal problems and I don’t want to have to change names after investing in branding, marketing, etc.
Thanks again!
Sincerely,
Jeff Mac
I believe what you were told by the secretary of stae is correct. I had the same issue when I filed my corp. I am not in anyway an attorney though…
How do you propose to deal with the trade/service mark issues?
Tuesday, October 28, 2008
When establishing an LLC or Corporation, is the entity automatically registered as a trade mark/service mark? Or is this a separate filing?
To my understanding, if there were any type of legal conflict, I would be informed and required to receive written consent from the other party.
Why would the state of California allow me to set up an entity, if it would be illegal in any way?
Again, thanks for all the feedback and insight!
I just can’t wait to get my LLC established so I can start using the name in all my contracts and documents!
Regards,
Jeff Mac
It is not automatic. You register each trade and service mark separately.
Correct. Unfortunately, you would have wasted all your branding efforts if they do not consent. Even if they do, it won’t be free. You are better off using your own marks instead of getting a license from another. Personally, I would never let another use my company’s name and I know no one, except franchisers, that do so.
They don’t check. They assume you do your due diligence and don’t infringe on the rights of others. Make sure you do it right the first time. CA is very expensive when it comes to LLCs.
Tuesday, October 28, 2008
BBL,
Thanks for the information!
I just received more related information:
“The filing of documents to incorporate a California corporation or qualify a foreign (out of state) corporation does not authorize the use in this state of the corporate name in violation of the rights of any other person who may have acquired rights to the use of the name by reason of some other law such as the Federal Trademark Act (Title 15, United States Code, Section 1051), the California Trademark Act (Business and Professions Code Section 14200), the Fictitious Business Name Act (Business and Professions Code Section 17900) and common law rights, including rights to a trade name. If you have any questions regarding such rights, you should confer with private legal counsel”:
So, since establishing an entity does not automatically register each trade/service mark, would it be possible for me to check if the other company has actually registered the name as a trade mark?
And if NOT, would I be able to register and then legally use that name? I wonder how much it costs to register a trade mark…
Thanks again for the advice!
Sincerely,
Jeff Mac
You can check the trademark. It’s best to do so with a patent agent or attorney. I don’t know if you can take it if it’s not already registered since it is already in use. It’s been a while since I studied patents and trademarks.
You can get more information from the US Patent and Trademark Office.
Disclaimer: I am not an attorney.
As I understand it, you are permitted to register a similar business name just as long as it is not identical to another registered business name.
The problem you might encounter is a trademark violation. If the Incorporated business has obtained a federal trademark for their company name and logo, then your using a similar business identity to sell similar products can compromise their brand and confuse customers.
If this happens, the Incorporated company could obtain a court order to discontinue operating under your business name.
Just my understand, however imperfect it may be.
Bill Bronchick would be an excellent resource to answer your question. A couple years ago, he successfully defended his “LegalWiz” name and logo from trademark infringement from “Legalzoom”
so…
just because you’re “allowed” to do something doesn’t make it smart.