Trademark and Fictitious Name Issues In Selecting Names

Trademark Law

State and Federal trademark issues are an often overlooked consideration when selecting a corporate name. The primary trademark issue, is whether the name that you shoose may infringe upon the name of another person. Even if your corporate name is available in your state that does not necessarily mean that someone else does not have trademark rights associated with that name. This is because of one key concept of Trademark Law; Trademark rights attach upon USE of a name and not uon filing or registration as a trademark or corporate name. Therefore, someone may have right to the name under trademakr laws even if they do not have the corporate name in your state.

The other thing to keep in mind is that there are also federal trademark laws. Under federal trademark law, someone who is incorporated or who has their principal business headquarters in another state may have trademark rights that you might infringe upon with the use of a conflicting name. This is why to be absolutely safe, a trademark search of your name is adviseable. This does not have to be performed necessarily upon formation. You can later file an amendment to your Articles to change the corporate name if you later discover it infringes on someone elses rights. But a trademark search is adviseable before you commence doing significant business or put substantial marketing or development costs behind your name.

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Because trademarks rights arise upon USE and not REGISTRATION, a search of the government office records (state records and federal trademark office) are not sufficient to disclose whether the name you have chosen conflicts upon the rights of a trademark owner. Registration records only show you who may have registered their trademark rights. There are likely many more companies with trademark rights than have gone through the process of registering those rights. Therefore, to assure you that you will not be sued by a trademark owner, a comprehensive common law trademark search is highly adviseable.

Fictitious Name Laws

Texas law restricts and prohibits your corporation from doing business under any name other than its complete corporate name UNLESS you first comply with the statutory process to register a fictitious name. You must be certain to observe this restriction when advertising your business, executing documents, and any other activities related to the business of your corporation. Each document that you sign should be in the name of the Corporation. This is also important for assuring that corporate formalities are followed and to take away any argument that a creditor could use to attach your personal assets for liabilities that arise through the activities of your incorporated business.

The purpose of the fictitious name statute and registration is to give notice to the public that you are doing business under a name that is not your correct legal name. For example, if your corporation name is "Jim's Lawn Care Service, Inc.", you may only legally do business under that full corporate name. You would not be permitted to do business under the name "Jim's Lawn Care" excluding the "Inc." unless you first register that name as a fictitious name. A fictitious name is commonly known as a "d/b/a" which stands for "doing business as." All "d/b/s names must be registered as fictitious names. Fictitious names are also separate and distinct from trademarks. Fictitious name registration is only for the purpose of notifying the public that you are doing business under an assumed name. Fictitious name registration alone does not confer trademark protection and does not permit you to stop any other person from using the same assumed name.

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