Businesses attach a corporate designator to their company name such as Inc., Incorporated, and Corp. If my whole company name is X Corp, can someone else start a business under the name X Inc. or X Incorporated? Can I prevent people from using my company name along with a designator?
Your question seems simple on its face but actually involves several different areas of law. If protection of your company's name is important, you should consult with a lawyer familiar with trademark law. I am not going to address trademark law here because I could not give you a useful answer within the brief compass of the space allotted. If you chose the right name, you will have a certain amount of protection from Section 5.053 of the Texas Business Organizations Code which states that "A filing entity may not have a name, and a foreign filing entity may not register to transact business in this state under a name, that is the same as, or that the secretary of state determines to be deceptively similar to or similar to: (1) the name of another existing filing entity;" and certain other names registered or reserved under other provisions of the Business Organizations Code. In those instances where your company name would be the same as or deceptively similar to a name sought by another filing entity, your written consent would be necessary for that other entity to use the similar name. The rules governing whether a name is similar and requires a Letter of Consent are quite complex. I have provided a link to the Texas Administrative Code below that explains the conditions that would require a letter of consent. In general, you would want to avoid names that have words commonly used together or nouns that appear in a dictionary. There is a certain amount of leeway in the interpretation of the Secretary of State's rules on similar names. I have had instances where a name was rejected and I successfully argued that no letter of consent is necessary.
You can prevent others from using your name with a different designator if your name is being used as a trademark, and not simply a business name.
Michael
www.accessipgroup.com
No one can give you a definitive answer via this forum. These are the types of questions you need to discuss with your own trademark and business attorney, who can provide his/her counsel after fully considering the involved issues.
As a brief explanation from the trademark side, similar to top level domains (think .com, .net, and .org), wording that merely indicates the legal entity of the busines such as "Corp.", "Inc.", "LLC", etc. is not protectable as a trademark. Therefore, if a mark otherwise infringes another's mark, such finding of infringement will not change simply because one uses "Inc." while another uses "Corp."
There are a number of factors that would need to be considered in a likelihood of confusion analysis, including potentially the strength of the trade name or mark "X", the goods/services being provided by both companies, the geographic scope of use, channels of trade being used by both companies, any actual (marketplace) confusion among consumers, and intent of the junior user. While it is possible that a future use of X. Inc. by a third party could infringe on your rights under X Corp., it is also possible that the two companies might be able to peacefully coexist.
Some states specifically prohibit use of a fictitious name that includes what you are calling a “corporate designator” unless the entity is incorporated. See e.g. CA B&P Code Sec 17910.5 TX law may be the same. Perhaps Mr. Bonica can shed some light on the TX law on point.
Kevin Mark JonesIntellectual Property Law AttorneyThe Woodlands, TX ·
You would need to trademark the "X" part of the name to prevent others from using it in any form, X, Inc. X, LLC, X Limited. Also, you need to ensure your name is not just X Corp, but that if you are using the "Corp" designation, that you are legally registered with the Secretary of State as a Corporation, and that you have By-laws and and board set up. Otherwise, you are operating under a fictitious name, and could find yourself not being allowed in court to sue or defend. I recommend you see a business attorney soon to get this straightened out and ensure your business is what you think it is. My office is in the Houston Area, if you are interested in a consultation.
In Texas you are breaking the law if your company name has Corp and the end and it is not actually a corporation. If you haven't filed your corporate paperwork with the secretary of state then stop calling yourself Corp.
Regardless, you should file a D/B/A in whichever counties you operate. It is cheap and if someone else files first you can lose your company name. It isn't clear cut but one big factor is filing a DBA.
